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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

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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

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44. Authority of Servant to Employ

Physician; Liability of Master.
Where a corporation operates a min-
ing plant, and does not authorize its
superintendents to employ a physician
at the expense of the corporation to
attend an employee injured by the
machinery of the plant, the law does
not imply such authority, at least,
where there is testimony that such
authority was not given or contem-
plated by those exercising the rights
of the corporation. The liability of
the corporation for negligence that
proximately injures an employee may
extend to medical services rendered
to an injured employee, but this does
not create a contract liability for such
services. Atlantic Refining Co. V.
Leffingwell & Berry, 61 Fla. 101..1:1
45. Actions.-Burden of Proof.

An employee who brings an action
to recover damages for personal in-
juries alleged to have resulted from
some negligent act of the master has
the burden of proof. Byrd, Adm'x v.
Ark.
Pine Bluff Corporation,

46.

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1:470

Pleading; Construction; Suffi-
ciency.

Where it is alleged in the complaint
that because of the personal injury re-
ceived a total loss of earning capacity
resulted, and that such injury was
the result of the negligence of the
defendants, a cause of action is stated,
and in such a case the amount of
damages sustained depends on the na-
ture of the injury. If the evidence

introduced without objection establish
ed the allegations as to bodily pain,
mental anguish, and incapacity to earn
money, the jury would be justified
in finding a verdict for the plaintiff.
Johnson v. Gary et al., 18 Idaho, 623,
111 Pac. 855...
.1:800

A complaint in an action for per-
sonal injuries, which contains a gen-
eral allegation of the absence of knowl-
edge on the part of the injured em-
ployee, of the danger involved in
reaching over an unguarded gear wheel
to oil moving machinery, is demurra-
ble, where the specific allegations
show that he must have known of the
defects and the danger therefrom.
Bresette v. E. B. & A. L. Stone Co.,
Cal., 121 Pac. 312............1:869
In an action by a servant for per-
sonal injuries, no consideration for the
master's promise to protect the serv
ant in his work need be alleged or
proved. Blanchard v. Vermont Shade
Roller Co., 84 Vt. 442..........1:152

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An averment in a declaration by a
servant in an action for personal in-
juries, that the master failed to take
certain action for the servant's safety
as he had agreed, promised and as-
sumed, does not make the count one
in assumpsit and, therefore, objection-
able as improperly joined with the
other counts. Blanchard v. Vermont
Shade Roller Co., 84 Vt. 142....1:152

Negligent construction of a coal bin
is sufficiently charged in a complaint
in an action brought by an employee
to recover damages for personal in-
juries, which alleges that, through the
negligence of defendant, plaintiff sus
tained injury by the falling of a coal
bin belonging to defendant, which
burst or collapsed because it was built.
constructed, and maintained in an un-
safe, defective, and insecure manner
by defendant, in that the upright posts
supporting the same were not fastened
or secured by nails, screws, bolts or
in any other manner, and were not

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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

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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

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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.
See Automobiles; Highways.

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

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Notice to a city, either actual or
constructive, of the defective condi-
tion of a sidewalk must be shown to
hold the city liable for injuries caused
by some defect, where the walk was
originally constructed in good condi-
tion. Roney v. City of Des Moines,
150 Iowa, 447.....
...1:461

In an action against a city to re-
cover for personal injuries to a pedes-
trian caused by the defective condi-
tion of the covering of a coal hole in
the sidewalk, it is proper to instruct
the jury that the defendant, as a munic-
ipal corporation, obtains notice and
knowledge through its officers and rep-
resentatives, and if such officers and
representatives as were charged with
the duty of constructing and main-
taining the sidewalk at the time and
place of the accident, or of inspecting
the same and of keeping it in proper
condition, received notice of the im-
proper construction or defective con-
dition of the walk where the injury
occurred, such notice is imputable to
the city. Roney v. City of Des Moines,
...1:461
150 Iowa, 447....

A city is liable for negligent in-
juries caused by a defect in a side-
walk, which, when originally con-
structed was unsafe, although it did
not construct the walk through its
own agencies and had no knowledge
of its defective condition. Roney v.
City of Des Moines, 150 Iowa, 447.

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It is a fact of common knowledge
that a snowplow used in clearing snow
from city streets does not, and cannot
clear the snow in the center of the
walk as well as it does at the edges,
where pedestrians have not trodden.
Jefferson v. City of Sault Ste. Marie,
166 Mich. 340..
..1:598

The danger of falls on slippery places
on the sidewalks of a city is one
against which a pedestrian must ordi-
narily protect himself, because a city
is under no obligation to remove either
ice or snow. Jefferson v. City of Sault
Ste. Marie, 166 Mich. 340_-_-__-1:598

A city not being obliged to remove
snow and ice from its streets, cannot
be held liable to a pedestrian who was
injured by slipping on an icy sidewalk
thereby breaking her leg, because of
a ridge of snow and ice left in the
middle of the walk by a snowplow
used by the city in clearing its side-
walks, due to the fact that the snow
in the center of the walk had been
trodden down by people more than
at the edges. Jefferson v. City of
Sault Ste. Marie, 166 Mich. 340..1:598
Removal of Obstruction;
Peanut Roaster.

5.

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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.

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1:909

Failure to Pass Ordinance

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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

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