American Negligence Reports, Current Series; All the Current Negligence Cases Decided in the Federal Courts of the United States, the Courts of Last R
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1912 edition. Excerpt: ...such as to relieve the master from liability for the injury of one servant through the negligence of another; " and proceeds and sustains the New York rule. In the case of Weeks 1/. Scharer, 111 Fed. 330, 49 C. C. A. 372, from the Circuit Court of Appeals of the Eighth Circuit, is a late decision prepared by Circuit judge Sanborn. It is a very instructive and exhaustive opinion, containing the citations of many authorities. It is there stated: " An employee frequently acts in a dual capacity--at times a fellow-servant, at times a vice-principal--and the line of demarcation between the negligence of one whose risk the servant assumes and that for which the master is liable is this, to wit: If the act is done in the discharge of a positive duty of the master, then the negligence therein is the negligence of the latter. If it is done in the discharge of any other duty of the employee, it is the negligence of the servant, the risk of which his fellows have assumed. Some of the rules which we have thus briefly restated have been the subjects of volumes of debates and conflicting decisions, but they have at last become established beyond doubt or cavil by the repeated decisions of the highest court in the land." See, also, Beesley '0. Wheeler & Co., I03 Mich. I96, I6 Am. Neg. Cas. 75, 61 N. W. Rep. 658. In Mast v. Kern, (Ore.) 54 Pac. Rep. 950, 75 Am. St. Rep. 580, after stating the Ohio doctrine, the court says: " On the other hand, the rule, and the one now unquestionably established and supported by the great weight of authority both in this country and in England, is that the liability of the master depends upon the character of the act in the performance of which the injury arises, and not in the grade or rank of...
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