The question whether a servant injured by falling while using a defective cant hook was guilty of contribu tory negligence in failing to discover the absence of a bolt fastening the cuff to the hook, is one for the jury. Parker v. W. C. Wood Lumber Co., 98 Miss. 750.... ...1:644 In an action for death resulting from personal injuries, the question of contributory negligence is for the jury, where from the facts established fairminded men might honestly draw different conclusions. Gregoric v. PercyLasalle Mining & Power Co., Colo. 122 Pac. 785..... ..1:715 42. Notice of Injury. The notice required to be served, under section 201 of the Labor Law, which provides that no action for injuries shall be maintained unless notice of the time, place, and cause of the injury is given to the employer, is sufficient, where it states as follows: "You will please take notice, that Vol. I. Negl.-63 on the 19th day of January, 1909, about 11 o'clock p. m., while I was in your employ as watchman and helper at your car barn and repair shop, situate in the town of Gates, west of the city of Rochester, I was injured by falling from the top of a car which was at the time standing in said barn for repairs. The said car was brought into the barn with a damaged trolley pole, and the repairs consisted in taking out that trolley pole and inserting another. The car was run into the barn on a track having a trolley wire over it, and I was sent to the top of the car to make the change of trolley poles. The power, or electric current, is supposed to be turned off from the trolley wire in said barn and from said car at such a time when repairs are taking place. After the old trolley pole was removed, and while I was standing on the top of the car, a new trolley pole was handed to me, and as I attempted to insert it in the socket it touched the trolley wire and I received a shock of electricity, which threw me to the ground, injuring my spine so that I am paralyzed and helpless." Greif, Adm'x v. Buffalo, Lockport & Rochester Ry. Co., 205 N. Y. 239 .1:44 .... 43. Violation of Statute as Affecting Right of Recovery. The collateral fact that the plaintiff and the defendant are engaged in violating the law does not prevent the former from recovering damages of the defendant for an injury negligently inflicted, unless the unlawful act contributed to produce the injury. (a) A servant who is injured by the negligent conduct of an incompetent fellow servant, the incompetency being unknown to him, may recover from the common master damages arising from his breach of duty in know. ingly employing and retaining the incompetent servant, where the proof shows that at the time of the injury 44. Authority of Servant to Employ Physician; Liability of Master. An employee who brings an action 46. - 1:470 Pleading; Construction; Suffi- Where it is alleged in the complaint introduced without objection establish A complaint in an action for per- - An averment in a declaration by a Negligent construction of a coal bin In an action brought to recover damages for personal injuries sustained by a fireman in a mill caused by the collapse of a coal bin, in which the petition charged that the bin was built, constructed, and maintained, in an unsafe, defective, and insecure manner in that the upright posts supporting the same were not fastened, or secured by nails, screws, or bolts, or in any other manner, the burden rests on the plaintiff to prove not only that the bin fell and injured him, but also that it fell by reason of some defect alleged in his petition; and, therefore, an instruction to the jury that the fall of the bin created a presumption of negligence on the part of the employer, was erroneous. Acme Cement Plaster Co. v. Westman, 122 Pac. 89 .1:408 .... Wyo. In an action brought by a fireman employed in a mill to recover damages for personal injuries caused by the collapse of a coal bin due to the alleged insufficiency of certain posts, an instruction to the jury that if the employer knew the peril to which the servant would be exposed, and the posts were not secured by nails, screws or bolts, or in any other manner, and if the plaintiff received injury as alleged, and the employer did not give notice of the defects in the bin to the servant, and if the servant at the time of receiving his injury was in the exercise of ordinary care, then the employer is liable in damages, is erroneous, in that it assumed that the servant was exposed to peril, that the posts were not secure in some way, and that it would lead the jury to conclude that the master was liable for its fail new In an action to recover damages for the death of a servant who received injuries from which he subsequently died, caused by falling from the top of a trolley car on which he was assisting another in replacing a pole, after the new pole had come into contact with the trolley wire which was charged with electricity, the question as to the cause of the shock which produced the accident was for the jury. Greif, Adm'x v. Buffalo, Lockport & Rochester Ry. Co., 205 N. Y. 239..1:44 49. Master's Liability to Third Per sons. The master is liable for the negligence of his servant in the performance of a duty to the master within the scope of the servant's employment. Jenkins v. Montgomery, 69 W. Va. 795. 1:58 MINIATURE RAILWAY. Lease of amusement park to independent contractor as relieving the owner of liability for injury caused by operation of miniature railway, see Amusements, 3. MOTOR VEHICLES. See Automobiles. MUNICIPAL CORPORATIONS. Liability for contaminated water supply, see Waters, 1. 1. Streets and Sidewalks.-Control. There is a broad presumption, where a walk is shown to have been constructed in a populous part of a city, that Notice to a city, either actual or In an action against a city to re- A city is liable for negligent in- It is a fact of common knowledge The danger of falls on slippery places A city not being obliged to remove 5. - uries to one caused by the explosion of a peanut roaster which, to the personal knowledge of the trustees, had obstructed the highway for many weeks before the accident. Frank v. Village of Warsaw, 198 N. Y. 463. 1:917 7. Blasting; Liability to Traveler. A municipal corporation, although not authorized by its charter or the general laws of the State to operate a rock quarry within its corporate limits, is not liable to a traveler injured when her horse took fright at blasts set off by agents of the city in a quarry near the highway, where rock was being obtained for use on the streets. City of Radford v. Clark, Va. .1:909 The fact that a municipality permitted its employees to discharge blasts in such a manner as to constitute a public nuisance, in a rock quarry, located 65 feet from the highway, does not render it liable to a traveler who was injured in consequence of her horse taking fright at a succession of blasts, where the blasting was not done in the performance of a duty imposed upon the municipality by law. City of Radford v. Clark, Va. 1:909 Failure to Pass Ordinance 10. Liability for Damage by Water.Insufficiency of Channel. Where a city diverts a stream of water from its natural channel and undertakes to convey the same by means of an artificial channel or canal, it should be held liable for the exercise of reasonable care and diligence in constructing a channel of sufficient size to carry the volume of water that may be reasonably anticipated or expected to flow down the same and for the maintenance of the same in a reasonably safe condition. Willson V. Boise City, 20 Idaho, 133, 117 Pac. 115. 1:203 A municipality will not be exempt from liability for damages on account of failure to maintain a sufficient artificial channel to carry off the water of a stream that it has diverted from its natural channel, merely on the grounds that the flooding and overflow was caused by an unusually heavy rainfall or cloud-burst the like of which has not usually occurred, where it appears that a number of such rainfalls or cloud-bursts have occurred in the same locality within the last preceding 15 or 20 years. Willson v. Boise City, 20 Idaho, 133, 117 Pac. 115..1:203 |