INDEPENDENT CONTRACTORS AND THE LIABILITY FOR THEIR NEGLIGENCE. DANGEROUS PREMISES. § 1. Who are Independent Contractors. § 2. Liability of Owner or Employer. A. Exercising Control. B. Failure to Exercise Control. 1. Neglect of Public Duty. 2. Incompetent Contractors. 3. Acceptance of Dangerous Premises. § 3. Liability of Independent Contractors. A. As Master of his Servants. B. To Third Persons. 1. Nature of his Employment. 2. Liability by Agreement. 3. Unauthorized Trespass and Dangerous Methods. § 4. Joint Liability of Employer and Contractor. It is a familiar rule of law which need not here be supported by authorities, that every owner of property is bound to make such use of the same and keep it in such condition, that the safety or property of other persons, lawfully on or near his premises may not be endangered. To this duty imposed upon the owner by law mere trespassers and licensees cannot appeal. They assume the risk and dangers of injury, and in general have no remedy against the owner for injuries." But as to all persons by the owner's invitation, express or implied, on his premises, he is bound to use ordinary care in keeping his premises in a safe condition; and he owes this duty to his servants, unless they voluntarily assume positions of danger the hazards of which they understand and appreciate. For injuries from perils incident to such positions they cannot recover.5 Sec. 1. Who are Independent Contractors? -The question whether the relation between 1 Ray. Negl. Imp. Duties, Ch. III, p. 18; 26 L. R. A. 686. 2 Gibson v. Leonard, 143 Ill. 182; Pelton v. Schmidt, 56 N. W. Rep. 689; Billows v. Moors, 37 N. E. Rep. 750; Faris v. Hoberg, 134 Ind. 269; Benson v. Traction Co., 77 Md. 535; Chapin v. Walsh, 37 Ill. App. 526. 3 Powers v. Harlow, 53 Mich. 507; Pelton v. Schmidt, 97 Mich. 231; Emry v. Minn. Ind. Expr., 57 N. W. Rep. 1132; Howe v. Ohmart, 26 L. R. A. 524, 33 N. E. Rep. 466. 4 Haley v. W. Transit Co., 76 Wis. 344; Johnson v. First Nat'l Bank, 79 Wis. 414; Sadowiski v. Mich. Car Co., 84 Mich. 100; Mollie G. Co. v. Sharp, 38 Pac. Rep. 850; Nadau v. W. R. L. Co., 76 Wis. 120; Propson v. Leather, 80 Wis. 608; Caroll v. Williston, 44 Minn. 287; Chic. E. I. Ry. v. Knieriem, 39 N. E. Rep. 324. Robinson v. Manh. Ry., 5 Wis. 209; Gulf, C. & S. F. Ry. v. Jackson, 65 Fed. Rep. 48; Goddard v. McIntosh, 37 N. E. Rep. 169; Reilley v. Parker, 31 N. Y. S. 1014. the employer and persons doing work for him is that of master and servant or that of independent contractor, must be solved upon the facts of each case and the intention of the parties; and in general it may be said that one rendering service in the course of an occupation representing the will of the employer only as to the result, but not as to the means of performance and the detail of the work by which it is accomplished, is an independent contractor. The tests are: direction of and control over details of the work; selection, discharge, control over the contractor's servants. For the absence of the liability of the employer for the acts of the contractor and his servants, the absence of control is the principal reason. The right of selection is the basis of the responsibility of a master for the acts and omissions of his servants. No one can be held responsible who has not the right to chose the agent from whose act an injury flows. In general, therefore, the employer is not liable for injuries caused by negligence of independent contractors or their servants. 10 While on the 6 Wray v. Evans, 20 Pa. St. 102; Harrison v. Collins, 86 Pa. St. 153; Wabash Ry. v. Farver, 111 Ind. 195; 14 Am. & Eng. Enc. of Law, p. 829; Edmunds v. Pittsburg Ry., 111 Pa. St. 316; Knowlton v. Hoit, 30 Atl. Rep. 346; 23 Cent. L. J. 249. 7 Boswell v. Laird, 8 Cal. 469; Linneham v. Rollins, 137 Mass. 123; Hexamer v. Webb, 101 N. Y. 377; Hughes v. Ry., 39 Ohio St. 461; Knowlton v. Hoit, supra; Riedel v. Moran & Co., 61 N. W. Rep. 509; Martin v. Tribune, 30 Hun, 391; Hackett v. W. U. T. Co., 80 Wis. 187; Long v. Moon, 17 S. W. Rep. 810; Bennett v. Truebody, 66 Cal. 509; Speed v. Ry., 71 Mo. 803; Pierrespont v. Loveless, 72 N. Y. 507; 14 Am. & Enc. of Law, p. 830; R. R. v. Norwood, 62 Miss. 565; Burmeister v. R. R., 47 N. Y. S. C. 26; 423 Am. L. Reg. (N. S.) 101, and cases cited; Cunningham v. Int. Ry., 51 Tex. 503; Waters v. Greenleaf J. L. Co., 20 S. E. Rep. 718; Larson v. Metr. St. Ry., 19 S. W. Rep. 416; Harris v. McNamara, 12 South. Rep. 103; Charlesbois v. Gogebic, 51 N. W. Rep. 812; Geer v. Darrow, 61 Conn. 230; Wabash Ry. v. Farver, 111 Ind. 195; Ferguson v. Hubbell, 97 N. Y. 507; Harding v. Boston, 39 N. E. Rep. 411. 8 Fuller v. Cit. N. B., 15 Fed. Rep. 875; Samuelson v. Cleveland Co., 49 Mich. 114. 9 Boswell v. Laird, 8 Cal. 469; Brown v. Smith, 86 Ga. 274; Bernauer v. Hartınan Co., 33 Ill. App. 491; Butler v. Townsend, 26 N. E. Rep. 1017; Jessup v. Sloneker, 21 Atl. Rep. 988; Charlock v. Freel, 125 N. Y. 357. 10 Casement v. Brown, 148 U. S. 615; Hale v. Johnson, 80 Ill. 185; Murrie v. Currie, L. R. 6 C. P. 24; Harris v. McNamara, 12 South. Rep. 103; Welsk v. Coal Co., 24 Atl. Rep. 86; Pifan v. Williams, 63 Ill. 16; Kelly v. Mayor, 1 Kernan, 432; Roemer v. Striker, 2 Misc. 573; Sherm. & Redf. Negl., § 168, p. 284, n. 1; Cinc. v. Stone, 38 N. E. Rep. 41; Searle v. Laverick, L. R. 9 Q. B. 122; Steele v. Ry., 16 C. B. 550; New Alb one hand, a master cannot convert his servant into an independent contractor by agreeing to exercise no control over him in the manner of doing the work," the employer may, on the other hand, by actual control over an independent contractor, convert him into his servant and become liable for his acts. 12 It is, therefore, important to ascertain under what conditions an employer cannot create the relation of independent contractor, and what contingencies make an independent contractor a servant and his employer liable for his negligence and that of his servants. Sec. 2. Liability of Owner or Employer A. Exercising Control over the Work. The relation of independent contractors does not exist where the owner exercises control over the details of the work. 18 Such control may be exercised in various ways: 1. Assuming entire control over the work; 14 furnishing plans and specifications. 15 2. Directing detail in the work and the means by which it is to be accomplished; 16 furnishing labor and material," or appliances, 18 or reserving the right to take such measures as are necessary Mills v. Cooper, 30 N. E. Rep. 294; Osborn v. Woodford, 1 Pac. Rep. 548; Pack v. Mayor, 4 Seldon, 222; Lettman v. Barnett, 62 Mo. 159; Cooley, Torts, 547; Bailey, Masters, 467, n. 1. 11 Tiffin v. McCormack, 34 Ohio St. 638. 12 Farren v. Sellers, 39 La. Ann. 1011; Robinson v. Webb, 11 Bush. 464; Sherm. & Redf. Neg. § 165; Clapp v. Kemp, 122 Mass. 481; Andrews v. Boedecker, 17 Ill. App. 213; Bailey, Masters, 467, n. 2. 13 Farren v. Sellers, 39 La. Ann. 1011. 14 Savannah Ry. v. Phillips, 17 S. E. Rep. 82. 15 Boswell v. Laird, 8 Cal. 469; Wilkinson v. Detroit Works, 73 Mich. 405; Lancaster v. Conn. L. Ins. Co., 5 8. W. Rep. 23, 92 Mo. 460. 16 Brackett v. Lubke, 4 Allen, 138; Lawyer v. McLean, 10 Mo. App. 591; Andrews v. Boedecker, 17 Ill. App. 213; Corbin v. Am. Mills Co., 27 Conn. 274; Horner v. Nicholson, 56 Mo. 220; Fisher v. Rankin, 78 Hun, 407; Larson v. Metr. Ry., 19 S. W. Rep. 416; Moir v. Hopkins, 16 III. 318; Sproul v. Hemmingway, 14 Pick. 1; Hefferman v. Benkard, 1 Robt. 432; Linneham v. Rollins, 137 Mass. 123; Kulwicki v. Munroe, 54 N. W. Rep. 703, 98 Mich. 28; Waters v. Pioneer Fuel Co., 55 N. W. Rep. 52. 17 O'Driscoll v. Faxon, 31 N. E. Rep. 685; Sawyer v. MeClosky, 20 South. Rep. 536; Coughtry v. Globe W. Co., 56 N. Y. 124; Ind. Ry. v. Toy, 91 Ill. 474; De Graff v. N. Y. Ry., 76 N. Y. 125; Latham v. Roach, 72 Ill. 179; Mulchy v. Meth. R. Soc., 125 Mass. 487; King V. N. Y. Central, 66 N. Y. 181; East St. Louis v. High water, 92 111. 189; 26 L. R. A. 524. The Dago, 31 Fed. Rep. 574: The Concord, 58 Fed. Rep. 913; Silliman v. Marsden, 9 Atl. Rep. 639; Porter v. Hannibal Ry., 71 Mo. 66; The Reela, 19 Fed. Rep. 926; The Benbrack, 33 Fed. Rep. 687; Steel v. McNeil, 60 Fed. Rep. 105; Mayes v. Chic. Ry., 63 Iowa, 562; Cole v. Chic. Ry., 67 Wis. 272; The Carolina, 30 Fed. Rep. 199, 32 Fed. Rep. 112. for the protection of the public and workmen.19 In such cases the owner or employer assumes the position of master, either as to the whole of the work or as to parts, and he will be liable for injuries caused by negligence of the contractor or his servants, weakness of the material furnished, incompetency and negligence of his workmen and defects in his appliances. The mere right of inspection, or only of passage, reserved by the employer so that he may see to a compliance with the contract, does not make the contractor a servant.20 But if the plan of the work is devised by the employer and the contractor simply engages to carry it out, and the defects from which the injury resulted are inherent in the work, the owner will be liable.21 Unskillful or negligent arrangement of the work, 22 selection of weak material, renders the owner liable if its insufficiency causes injuries. 28 So in Massachusetts, the employer is liable by statute to employees of an independent contractor for injuries from defects of ways, works, machinery or plant, being his property and, not discovered or not remedied, arising through his or his agent's negligence in seeing that they are in proper condition. 24 B. Owner or Employer Exercising no Control, Liable.-Such duties, imposed by statute or by general law, the owner is bound to fulfill, and he cannot escape liability by delegating the control of his property to an independent contractor. In such cases, although he exercises no control over the work and property, he may, for this very reason, become liable for injuries resulting from, or caused during the performance of the work, because the law casts on him the duty of guarding against such conditions as caused the injury. 1. If the duty to be performed is a public duty, its non-performance cannot be excused by reason of the engagement of an independent contractor under whose supervision such 19 Lake Sup. Iron Co. v. Erickson, 39 Mich. 492. 20 Bibb v. Norfolk, 14 S. E. Rep. 163; Welsk v. Coal Co., 24 Atl. Rep. 86. 21 Boswell v. Laird, 8 Cal. 469; Farren v. Sellers, 39 La. Ann. 1011. 22 Horner v. Nicholson, 56 Mo. 220. 28 Meir v. Morgan, 52 N. W. Rep. 174. 24 Toomey v. Donovan, 33 N. E. Rep. 396; Johnson v. Speer, 76 Mich. 139; Savannah & W. Ry. v. Phillips, 17 S. E. Rep. 82; Whitney v. Clifford, 46 Wis. 138. 34 negligently constructed or so greatly decayed that it is likely to fall upon adjoining property or persons making use of easements over it, is a nuisance. 2 Tearing down an old building is an operation requiring more than ordinary care, not only to prevent damages to adjoining property, but to avoid injury to employees and passers-by. For an injury arising from the nature of the work and not from a failure to execute it, it seems the employer of the independent contractor must be liable, whether he be the owner of the premises or not.35 Blasting is not dangerous in itself, but the way in which it is done may create danger, and independent contractors are not liable for the negligence of independent subcontractors causing injuries in blasting rocks in an excavation for the building, in absence of any showing that the contractors themselves were negligent.3 But if done in a city it is dangerous in itself, and the owner employing independent contractors to do work involving blasting will be liable to a person injured, if he knew blasting was necessary, or, learning it was being done, failed to prevent injury.37 So, if he knowingly employs contractors in the habit of blasting, contrary to ordinance, his implied permission to blast amounts to a direction.38 So a person, by license, laying pipes in streets, is liable for injuries caused by the negligent manner in which it is done by an independent contractor. 39 The employer causing such dangerous work is regarded as master, and responsible for injuries resulting from the negligence of his contractor. 40 Cutting into a party wall is in itself dangerous and a trespass, and renders all participants liable.42 36 omission results in injury.' 25 Nelson v. Vermont, 26 Vt. 717; Rockford v. Huflin, 65 Ill. 367; City & Sub. Ry. v. Moores, 30 Atl. Rep. 643; Sherm. & Redf. Negl., § 176; H. & J. Ry. Co. v. Meador, 50 Tex. 77; Pont v. Port Huron, 54 Mich. 13; 14 Am. & Eng. Enc. of Law, p. 835; Moynihan v. Whidden, 143 Mass. 287. 26 McCleary v. Kent, 3 Duer. 27; Milne v. Smith, 2 Dow. 290; Sheppard v. Creamer, 160 Mass. 486; Sherm. & Redf. Negl., § 174; Sulzbacher v. Dickie, 6 Daly, 469; Hawyer v. Whalen, 29 N. E. Rep. 1049; Dixon v. Pluns, 98 Cal. 384; Dohn v. Dawson, 32 N. Y. S. 59. 27 Nordheim v. Alexander, 19 Can. S. C. R. 248; O'Connor v. Andrews, 81 Tex. 28. 28 Wilkinson v. Detroit Steel Co., 73 Mich. 405. 29 Engel v. Eureka Club, 59 Hun, 593. 30 Ellis v. Sheffield Co., 2 Ell. & Bl. 766; Cried v. Hartmann, 29 N. Y. 591; Glickauf v. Maurer, 75 Ill. 289; Irvin v. Wood, 51 N. Y. 224, 4 Rob. 138; Chicago v. Robbins, 2 Blackf. 418; Joilet v. Harwood, 86 Ill. 110; Lebanon, El. L. & P. Co. v. Leap, 39 N. E. Rep. 57; Ohio Ry. v. Morey, 7 L. R. A. 701, 47 Ohio St. 207; 23 Am. L. Reg. (N. S.) 101, and cases cited; Moak's Underhill, Torts, p. 277; Congrave v. Morgan, 5 Duer, 495; Sulzbacher v. Dickie, 51 How. Pr. 500; Leslie v. Poundo, 4 Taunt. 649; Wood v. Luscomb, 23 Wis. 287; Clarke v. Fry, 8 Ohio St. 358; Koch v. Sackmann Co., 37 Pac. Rep. 703; Dorritz v. Rapp, 72 N. Y. 307; Woodman v. Metr. Ry., 149 Mass. 335; Lloyd, Bldgs., § 81; Sherm. & Redf. Negl. §§ 168, 174, 176. 31 Woole v. Wright, 31 L. J. Ex. 513. 32 Mullen v. St. John, 57 N. Y. 567; Nordheim v. Alexander, 19 Can. S. C. R. 248; Grove v. Fort Wayne, 45 Ind. 429; Simmons v. Everson, 124 N. Y. 319. 83 Bickford v. Richards, 154 Mass. 163. 34 Engel v. Eureka Club, 59 Hun, 593; Stores v. Utica, 17 N. Y. 104; Robbins v. Chicago, 4 Wall. 657; Sherm. & Redf. Negl., § 176; St. Paul v. Seitz, 3 Minn. 297; Brusso v. Buffalo, 90 N. Y. 679. 35 Crenshaw v. Ullman, 20 S. W. Rep. 1077. 87 Jones v. McMinimy, 20 S. W. Rep. 435. 38 Borth v. Rome, 63 Hun, 624; Pye v. Faxon, 156 40 Williams v. Fresno C. Irr. Co., 96 Cal. 14. 42 Ch., K. & W. Ry. v. Watkins, 22 Pac. Rep. 985; Lancaster v. Conn. Life Ins. Co., 5 S. W. Rep. 23. ployer. 49 And if the independent contractor abandons the work and vacates the premises the owner will be liable for injuries subsequently resulting to third persons, 50 upon the doctrine that the owner is under the legal duty of keeping his premises in a safe condition; although in some cases of endangering the life and limbs of others by furnishing defective work the knowledge that it will be used in reliance upon its solidity, in a dangerous undertaking, may render the maker liable for injuries arising after acceptance by the employer. 51 2. Employing Incompetent Contractors. Although the work require some labor or apparatus in itself dangerous to others, if it may be done and used safely under proper care, as contemplated in the contract, it will be presumed the employer intended it to be done properly and carefully. 43 In such cases the adoption of dangerous methods renders the contractor alone liable. But if from the nature of the work injuries are likely to result, the employer is also liable. 44 So a person employed in tearing down a building which falls before it is expected, will be nonsuited unless he shows further negligence of the owner. 45 It is therefore naturally in the interest of the owner, and the law casts on him the duty of selecting competent and skill- | between the contractor and his employees, as ful contractors, or the owner will be liable for the contractor's negligence and unskillfulness causing injuries. This is the doctrine of "culpa in eligendo," which was applied and well defined in Roman law. 46 So in alterations of a house involving use of a party wall, the law casts upon the owner the duty of seeing that reasonable care and skill is exercised to prevent injury, and he cannot avoid responsibility by delegating the work to an independent contractor.47 But if he employs competent architects and superintendent, and a workman is injured during the erection of a building in an accident caused by inherent weakness of material the owner is not liable. 48 3. Acceptance of Dangerous Premises. -Acceptance of defective work, which subsequently causes injuries, renders the owner liable, and the liability of the contractor ceases with its acceptance by the em 43 Smith v. Simmons, 103 Pa. St. 32; Lawrence v. Shipman, 39 Conn. 587; Bailey v. R. R., 57 Vt. 252; Martin v. Tribune, 30 Hun, 391; Aston v. Nolan, 63 Cal. 269; 23 Cent. L. J. 254. # McDonnell v. Rifle Boom Co., 71 Mich. 61. 45 Weidman v. Tacoma Co., 35 Pac. Rep. 414. 46 Hasse, Culpa, 2d Ed. 405. 423 Am. L. Reg. (N. S.) 93; Carter v. Berlin Mills, 58 N. H. 52; Hilliard v. Richardson, 3 Gray, 349; De Forrest v. Wright, 2 Mich. 371; Horner v. Nicholson, 56 Mo. 220; Scammon v. Chicago, 25 Ill. 424; Homans v. Stanley, 66 Pa. St. 464; Berg v. Parsons, 31 N. Y. S. 1091; Blake v. Ferris, 1 Seld. 48; Pawlett v. R. R., 28 Vt. 298; Boswell v. Laird, 8 Cal. 469; Clark v. Fry, 8 Ohio St. 358; Robinson v. Webb, 11 Bush. 464; Robbins v. Chicago, 4 Wall. 657; Jones v. Chanton, 4 Thomps. & C. 63, 2 Thomps. Negl., § 29. 45 Walton v. Bryn Mawr Hotel, 160 Pa. St. 3; Norwood Gas Co. v. Bank of Norwood, 63 Conn. 495. Sec. 3. Liability of Independent Contractors. -A. The principles of master and servant apply, of course, in all particulars, as well between the owner and his servants. The duty of furnishing safe places for work, safe appliances and machinery, competent fellowservants, warnings of dangers, etc., are as well applicable here as the doctrines of fellowservants, vice-principal, respondeat superior, assumption of risk, etc.52 And the owner is likewise responsible for the acts of his servants causing injury to employees of independent contractors; 53 although it may be possible in some cases to regard them as fellowservants by reason of the owner's control over the work. 54 1. When a servant enters an employment he assumes all the ordinary hazards incident thereto, whether the employment be dangerous or otherwise, 55 and in an obviously dangerous business conducted in a manner fully known at the outset, the servant assumes the risk of its conduct, although a safer way could have been adopted. 56 49 Boswell v. Laird, 8 Cal. 469; Church v. Buckhart, 3 Hill, 193; Mullen v. St. John, 57 N. Y. 567; First Presb. Congr. v. Smith, 26 L. R. A. 504; Barry v. Ferkildsen, 13 Pac. Rep. 657; Fanjey v. Seales, 29 Cal. 249. 50 Phil. Ry. v. Phil. Towboat Co., 23 How. 209. 51 Devlin v. Smith, 89 Ν. Υ. 470. 52 Piette v. Bavaria Br'g Co., 52 N. W. Rep. 152; 39 Cent. L. J. 467; 1 Sherm. & Redf. Negl., §§ 170, 171. 53 Burke v. Norwich Ry., 34 Conn. 474; Union S. Co. v. Cloridy, L. R. (1894) A. C. 185; Young v. N. Y. Central, 30 Barb. 229; Higgins v. W. U. T. Co., 8 Misc. 433; Keiley v. Allianca, 44 Fed. Rep. 97; Ch., B. & A. Ry. v. Clark, 26 Neb. 645. 54 Evans v. Lippincott, 47 N. J. L. 192. 55 Knight v. Cooper, 14 S. E. Rep. 999; Hanrathy v. N. C. Ry., 46 Ind. 280; Louisville Ry. v. Kelly, 63 Fed. Rep. 407; Stewart v. Ohio Ry., 20 S. E. Rep. 922; Wigmore v. Jay, 5 Ex. 354. 56 Joyce v. Worcester, 140 Mass. 245; Goddard v McIntosh, 37 N. E. Rep. 169; Robinson v. Manh. Ry 61 2. The employer is not responsible to his employee for injuries received in the occupation for which he was engaged.57 The master must use ordinary care in protecting his servants from unnecessary risks of employment, and if he fails in this duty he is liable,59 unless the servant with knowledge of defects in master's premises, continues in his service without proper notice to the latter. In such case he assumes the risk of injuries growing out of such defects.60 The test as to the assumption of risk by an employee is, whether an ordinarily prudent person of his age and experience under like circumstances would have appreciated the danger, under the exercise of due diligence, 62 which should be measured by character and risk of the business; and the degree of care of all parties is higher when life and limbs of themselves and others are endangered, than in ordinary cases.63 So where an employee of a building contractor, to do iron work, knowing a hole existed in the floor, voluntarily chose to work near it to save labor, though the foreman was incompetent, the defendant contractors negligent in leaving the hole uncovered, the employee, killed by a fall through the hole, unused to the work, he took the risk and defendants were not liable. But the risk in taking down a heavy arch of stone left after a day's work without support, soaked by rain the next day (Sunday), and upon resumption of work Monday, falling and killing a common laborer, in presence of the contractor, who testified the arch was apparently safe, against the testimony of others skilled in the business, that it was apparently unsafe, though apparent to an experienced mason, is not apparent to a com mon laborer, and the contractor is liable for negligence. So, under a statute holding the master liable for willful neglect in keeping his premises safe for the use of his servants, he was not held liable for the death of a servant killed in working on dangerous premises, as he knew their condition and continued to use them without objection, since in such case the master is not guilty of willful neglect. 66 B. Contractor's Liability to Third Persons. -As to third persons the contractor, if he exercises an independent employment, will be liable for injuries caused by his trespass or negligence in a work which might be lawfully and safely done as contemplated in the contract. 1. This liability results from the nature of his employment as independent contractor, which gives him the sole supervision of the work, although he is subordinate to the general plan of the work and to the conditions of the contract.67 So where the contract is for completion and delivery of the whole work the contractor is alone liable until the work is accepted by his employer. In such cases the owner's or employer's liability begins upon acceptance. But it was held that a carpenter building a scaffold for a painter for the use of his men in painting a dome 90 feet high, is liable for injuries from any defect or negligence in its construction, causing it to give way, and that he owed the duty to the men to make it secure. So may an independent contractor become liable for injuries to servants of another independent contractor caused by a defective scaffold, if it is accepted by the former for the use of his workmen;70 for he was responsible for the safety 69 5 Misc. 209; 1 Sherm. & Redf. Negl., § 185. Instances: Schwartz v. Cornell, 59 Hun, 623; Church v. Appely, 58 L. J. Q.B. 144; 14 Am. & Eng. Enc. of Law, pp. 842, 845; Carey v. Sellers, 41 La. Ann. 500; Hutchinson v. York Ry., 5 Ex. 350. 57 Priestly v. Fowler, 3 M. & W. 1, 6; Peterson v. Rushford, 41 Minn. 289; Melville v. Mo. River Ry., 48 Fed. Rep. 820; O'Neill v. Chicago Ry., 31 N. E. Rep. 669; Ill. Central v. Cox, 21 Ill. 20, 26; Richards v. Rough, 53 Mich. 212; Foley v. Jersey City El., 24 Atl. Rep. 487. 58 1 Sherm. & Redf. Negl., § 189. 59 lb. §§ 186, 187; Galveston Ry. v. Daniels, 28 S. W. Rep. 711. 60 Tex. & Pac. Ry. v. Bryant, 27 S. W. Rep. 825. 62 McDugan v. N. Y. Central, 31 N. Y. S. 135. 64 Schwartz v. Cornell, 59 Hun, 623. 65 Gill v. Donninghausen, 48 N. W. Rep. 862. 66 Needham v. Louisville Ry., 11 S. W. Rep. 306; Assumption of Risk by Volunteers, 22 L. R. A. 663. 67 Gallagherv. S. W. Exp. Ass., 28 La. Ann. 943; Norwalk Gas Co. v. Bank of N., 63 Conn. 525; Chambers v. Ohio L. J. & T. Co., 1 Dis. (Ohio) 329; Casement v. Brown, 148 U. S. 615; Lottman v. Barnett, 62 Mo. 159; Powell v. Virginia Co., 13 S. W. Rep. 691; St. Louis v. Knott, 16 S. W. Rep. 9; Hunt v. Pa. Ry. Co., 51 Pa. St. 475; Boswell v. Laird, 8 Cal. 469; Kelley v. Mayor, 1 Kernan, 432; Roemer v. Striker, 2 Misc. 573; Pack v. Mayor, 4 Selden, 222; Crenshaw v. Ullman, 20 S. W. Rep. 1077; Long v. Moon, 17 S. W. Rep. 810. 68 St. Louis Ry. v. Willis, 16 Pac. Rep. 728; Atlanta Ry. v. Kimberly, 16 S. E. Rep. 277; Welsk v. Coal Co., 24 Atl. Rep. 86; Curtain v. Sommerset, 21 Atl. Rep. 244. 69 Devlin v. Smith, 89 N. Y. 470. 70 Mauer v. Ferguson, 17 N. Y. S. 349. |