A Treatise on the Law of Railroads: Containing a Consideration of the Organization, Status and Powers of Railroad Corporations, and of the Rights and Liabilities Incident to the Location, Construction and Operation of Railroads; Together with Their Duties, Rights and Liabilities as Carriers, Including Both Street and Interurban Railways, Volume 4

Byron Kosciusko Elliott, William Frederick Elliott

Bobbs-Merrill Company, 1922

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Table of Contents

Index

CHAPTER LV	2

CHAPTER LVII	3

Contract the basis of the employers duty	4

Who are employes	6

Employers duty to furnish a reasonably safe working place	8

Structures near the track	11

Objects near trackIllustrative and conflicting cases 1826 Failure to fence	19

Bridges	21

Release executed in one state and death in another where such release is prohibited	432

SECTION	434

Acceptance of benefits under such contract after injury releases	440

Hospitals and medical attendance	446

Implied duties as carriers	452

Breaking bulkTransfer of goods from cars of one company	458

Right to prescribe extent of liability where a railroad company	464

Bridge companies 2106 Express dispatch and fast freight companies	468

Narrow bridges	24

Negligence of employer in failing to keep premises safeSwitch yards	25

SECTION	27

Switch yardsBlocking frogs	29

Machinery and appliancesMasters duty respecting	30

Appliances generally used sufficient	32

Latent defects	34

Delegation of masters duty	35

Employer not bound to abandon appliances because newer ones are in	37

InspectionDuty	38

Simple tools	43

Foreign carsDuty of inspection	45

Inspection of foreign carsMay depend on circumstances	48

Employers duty to promulgate rules	49

Timetables or schedules	52

Violation of rules by employes	53

Construction of rulesViolation usually negligence per se Excuse Discretion	57

Duty to warn employe of danger	59

Duty to employ competent servants	65

Presumption of competency of employe	67

Burden of proof where incompetency of fellowservant is alleged	68

Trains to be provided with a sufficient crew	69

Assumption of risks of serviceGeneral doctrine	70

Assumption of risks distinguished from contributory negligence Basis of doctrineBurden of proof	76

Assumption of risksEmployers methods of doing business	80

Risks of serviceIllustrative cases	81

Duty of employe to acquaint himself with employers business methods 1854 Duty of employe in regard to competency of coemployes	85

Employe bound to use ordinary care to remedy defects	88

Duty of employe to acquaint himself with rules of employer	89

Promise to repair	91

BrakemanAssumption of risks	93

Couplers bumpers and brakes	98

Brakes couplers and other safety appliancesAct of Congress	102

Engineers and firemenAssumption of risks	103

Dangers from running of trainsSection men trackmen and the like	108

Car inspectors repairers and cleaners	111

Injuries from explosions	114

Injuries from collisions	116

Cars negligently loaded	119

Other risks generally	121

Dangerous service	124

Performing work outside of scope of the contract of employment Permissive privilege	125

Employes going to and from work	129

Work outside of the ordinary line of dutySpecial orders	130

Volunteers	134

Concurrent negligence	137

The rule as to the masters knowledge of defects 1875 Test of the employers liability	140

Evidence of employers negligence	141

Employer not liable to employe unless the negligence was the proximate cause of the injury	143

Knowledge of defects on part of employeAverment and proof	145

Knowledge of defects on part of employeEvidence	146

Contributory negligence of employes	147

Contributory negligence of employesIllustrative instances 1882 Contributory negligenceViolation of statutory duty 1883 Contributory negligence of ...	160

Contributory negligence of flagmen and watchmen	161

Contributory negligence of section men and track laborers	162

Contributory negligence in mounting or alighting from moving cars	164

Contributory negligence in walking upon tracks	165

Contributory negligence in making flying switches	166

Injuries to street railway employes	167

Contributory negligence of street railway employes	168

CHAPTER LVI	171

ViceprincipalSuperior agent	176

ViceprincipalSuperior agentIllustrative cases	178

ViceprincipalThe true test	181

Viceprincipal as to particular subjects	182

What constitutes a common employment	183

General managersSuperintendents	186

Train dispatcher	188

Master mechanic	189

Road masters	190

Train masters 1906 Station masters	191

Yard masters	192

Inspectors	193

Telegraph operators	195

Foremen	197

Trainmen engaged in operating the same train	200

Trainmen operating different trains	203

Trainmen and switchmen and laborers and sectionmen	204

Towermen and block signal men as fellow servants of trainmen	207

Recent federal cases	208

Other recent casesMiscellaneous	209

Fellowservant doctrine not available to a stranger	212

Fellow servants in street railway operation	213

Negligence of master concurring with that of fellow servant	214

Question of fellow servant or viceprincipal one of law or of fact	215

Changes in the law of master and servant by legislationGenerally	216

Validity of statutes	219

Invalid legislation	222

Construction of employers liability statutesGenerally	224

Construction of employers liability actsDefinitions	225

The effect of the statute upon the contractural element in the re lation of employer and employe	226

Railroad companies owning lines partly within the state and partly within other states 1932 Railroads operated by receivers	231

The relation of master and servant must exist	232

Care required by statute of employer and respecting machinery and appliances 1935 Who are within the statute	234

Railroad hazardsWhen statute is confined to risks from operation of road	236

Statutes held to cover hazards other than from operation of trains 1938 Assumption of risksEffect of the statute	241

Who are fellowservants under employers liability acts	244

Defects in appliances or machineryWhat are within meaning of the statute 1941 Latent defectsRule under the statute	247

Rule where the defect is not attributable to the negligence of the employer	248

Presumption of negligence 1944 Selection of coemployes	250

Superintendents within the meaning of the employers liability acts 1946 What constitutes negligence in superintendence 1947 CarsTrainsMeaning of ...	254

Use and operation of railwayMeaning of term	255

Charge and control	258

Person to whose order the injured servant was bound to conform and did conform	259

Contributory negligenceDoctrine of as affected by the statute 1952 Contracts waiving right of action invalid	262

CHAPTER LVIII	264

SECTION	265

Construction of actGenerally	268

Provision as to negligenceCars works appliances or equipment	269

Provision against contract exempting from liability 1965 Employes engaged in interstate commerceNot essential that negligent employe should	271

What employes are includedIllustrative cases	274

Assumption of risks	278

Contributory negligence	279

Comparative negligence	281

Survival of right of actionTwo distinct causes of action	282

Whether death is instantaneous as affecting action for beneficiaries 1972 Beneficiaries	283

Jurisdiction	285

Removal of cause to Federal courtWaiver	286

Limitation as to time of instituting action	287

Parties	288

Right to prosecute as poor person 1978 Pleading and practice	289

Theory of complaintAct of Congress or state or common law Election of remedies	293

Damages	296

Distribution and apportionment of damages SECTION	297

CHAPTER LIX	299

Act of Congress of March 2 1893 and amendmentsAutomatic couplersBrakesGrab ironsDrawbars	305

Supplementary Act of 1910Ladders brakes etc RepairsPen alty and liability for death or injury of employe	306

Orders of Interstate Commerce Commission	309

What carriers and cars are included in Safety Appliance Act 1993 Empty cars and cars in yards for repairs 1994 Specific duties and requirementsCou...	310

Specific duties and requirementsMiscellaneous	313

without negligence 1998 Assumption of risks	315

Contributory negligence	317

Action for injury caused by violation of Safety Appliance Act 2001 Suit for penalty	319

Other actsAsh pan and boiler inspection acts	320

Full Crew Acts	323

CHAPTER LX	325

Exceptions and excuses under general proviso of 3	333

Actions for penalties 2015 Actions for damages for injury to person or property	335

Adamson EightHour	336

CHAPTER LXI	338

Serious and wilful misconduct	340

Constitutionality	341

Construction	345

Railroad employes as within Workmens Compensation Acts 2025 Effect of Federal Employers Liability	347

Right to and effect of election to accept or reject the statute	348

Territory covered by the actExtra territorial effect 2028 Residence of beneficiary as affecting right to compensation	352

Disobedience of rules or regulations of master	354

Accidents arising out of and in course of employment 2032 Who are workmenCasual employes	358

Who is dependent within	361

Notice of injury or claim 2035 Medical examination and treatment	366

Compensation recoverableAverage weekly earnings 2037 Remedy and procedure	371

Appeal and review	372

CHAPTER LXII	374

Constitutional questions	377

Recent Act of Congress	378

Two classes of statutes	381

Limiting the right to sueDesignating the forum	383

Instantaneous death	385

Statutes have no extra territorial effect 2052 The right and the remedy	387

Conflict of	389

Aliens	393

Who may recover rGenerally 2056 Who may recoverIllustrative cases	395

What must be shown to constitute a cause of action	399

Year and a	401

Actions for injuries causing death are transitory	402

Actions by administrators and executors	403

LimitationsTime within which action must be brought	405

Statutes do not deny the right to rely upon defense of contributory negligence	408

One recovery merges cause of action	410

When no mergerAction pending at death	412

ReleaseCompromise	413

Avoiding releases and compromises	416

Measure of damages	421

Measure of damagesEvidence	425

Mitigation of damages	431

Forwarders	470

Carrier as agent or factor	471

Street railway companies	472

CHAPTER LXV	475

What constitutes complete delivery	477

Effect of requirement that shipper shall load	480

Delivery to authorized agent	481

Delivery to unauthorized person 2120 Delivery by agent of shipper	484

Delivery must be for immediate shipment	485

Notice of delivery	487

Place of delivery	488

Delivery to connecting carrier	490

Evidence of delivery	491

Estoppel by acceptance to raise question of ownership 2127 Delivery to carrier passes title to consignee	493

Acceptance of goods whose transportation would violate	495

CHAPTER LXVI	497

Power of agent to issue bills of lading	500

Execution of bills of lading	502

Premature issuance of bill	504

Bills of lading as evidence of receipt of goodsBona fide pur chasers	505

As evidence of condition weight or contents	508

As evidence of value	512

Misdescription in bill	513

As evidence of contractNot variable by parol	514

Construction of bills of lading	518

Construction of particular words and phrases	519

As muniments of titleDelivery by carrier	521

Effect of direction in bill of lading to notify some designated person	526

Bills of lading assignable but not negotiable	527

Rights of bona fide purchasers and other third persons who hold bills of lading	529

Bill with draft attached 2151 Duplicate bills	537

Change of consignment by shipper 2153 Federal Bill of Lading	538

CHAPTER LXVII	541

Duties of initial carrier generally	542

No extraterminal liability unless by contract	543

There may be liability by contract	544

What constitutes such a contract	546

Illustrative cases	552

Authority of agents as to extraterminal liability 2167 Exclusion of liability by contract	556

Rule when statute makes initial carrier liable for negligence of others	558

Liability for deviation or failure to obey instructions 2170 Actions on account of extraterminal defaults	562

Carmack Amendment and later amendments	564

SECTION	566

Definition CHAPTER LXVIII	570

Commencement of connecting carriers liability	571

Duty of connecting carrier to receive goods from predecessor	574

Liability for defaults of the initial or of other connecting carriers	575

Liability as partnerWhat constitutes partnership 2185 Effect of initial carriers contract on connecting carriers 2186 Liability for defaults of common a...	581

Liability for their own defaults	582

Duty of intermediate carrierExtent and termination of liability	584

Further of duty and liability of connecting carriers	586

Presumption against last carrier	588

Rights and liabilities as to charges	593

Liability of carriers as between themselvesAction over	597

CHAPTER LXIX	601

General nature of the commonlaw duty	605

Act of GodWhat constitutes	608

Act of GodExpress contract	612

Burden on carrier to prove that act of God caused lossConcur ring negligence	613

Where carriers negligence precedes act of God but there would otherwise be no loss	615

Public enemies	620

Public enemiesMobsStrikes	621

MobsViolence of does not relieve where there is an express contract	623

Public authorityWhen exercise of exonerates carriers 2210 When the liability of the company as a common carrier attaches 2211 Railroad company ...	631

The duty to carry	635

Refusal to carryExcuses	636

Duty to carry intoxicating liquorWebbKenyon	641

DiscriminationUnjust forbidden	643

DiscriminationLike facilities to be furnished to all where like conditions exist	646

DiscriminationEffect on stipulations limiting liabilities 2219 Duty to furnish cars	648

Refusal to carryDuty to state grounds of refusal 2221 Duty of carriers as to cars and equipmentsStandard	650

Express contract to furnish cars	651

Goods requiring unusual facilitiesRefrigerator cars 2224 Acceptance of perishable propertyCars and equipments	655

Failure to furnish carsOffer of goods	656

CarsInability to furnishBurden on carrier to prove an excuse for failure to furnish	657

Duty of carrier as to cars and equipmentsInfluence of breach of duty on contracts limiting liability	658

Facilities for transportationYardsDepots	660

Selection of cars by shipper	662

NegligenceHandling goods	664

Delay in transporting goodsGeneral doctrine 2232 Unreasonable delayWhat constitutesEvidence of 2233 DelayAccidents and obstructions	671

Accidents do not terminate the duty of the carrier 2235 Care of goods during delay	672

DelayNotice to the owner	673

DelayDestruction of goods while awaiting transportation by fire 2238 Delay in transporting goods caused by the act of the owner	675

Directions and instructions of shipperDuty of obedience	676

Fraud of shipper	677

Negligence of ownerPacking and loading goods	678

Placing goods in an exposed position	681

What law governsLaw of the placeConflict of laws 2244 What law governsInterstate shipments	685

CHAPTER LXX	687

Right to limit liability prohibited by statute in some states	693

Right to limit liability by special contract in most jurisdictions	695

Nature of special contract required	697

Limitation in receipt or bill of lading	700

Effect of failure of shipper to read contract containing limitation	703

Parol limitation	704

2260	706

Consideration necessary Effect of agreement for rebate in violation of law on liability for negligence Construction of contract	709

Further of construction of contracts	712

Conflict of laws	713

Power of agents to agree to limitations	715

Stipulation exempting carrier from liability for loss by fire	718

Stipulations as to insurance	719

Stipulations as to value and amount of damages 2269 Stipulations that value at place of shipment shall control	728

Stipulation exempting carrier from liability in case of live stock	729

Stipulations as to manner and time of presenting claims 2272 Miscellaneous stipulations	738

Miscellaneous stipulations intended to evade rule as to contracts against liability for negligence 2274 Waiver of stipulation limiting liability or fixing ...	739

Benefit of exemption lost by deviation	741

Burden of proof	742

Acts of CongressInterstate shipments	748

CHAPTER LXXI	753

Personal delivery	755

Place of delivery	756

Time of delivery	759

Manner of delivery	761

Custom and usage	764

Delivery must be to right person	766

Delivery to agent	769

Delivery when goods are shipped in care of another 2294 Right of carrier to require identification of consignee	772

MisdeliveryCarrier liable	773

MisdeliveryWhen	775

When liability as carrier terminatesNew Hampshire rule and Massachusetts rule conflicting	777

Third viewNotice required	780

Reasonable time to inspect and remove	784

Rule where goods are to be held until called for 2301 Rule where goods are not to be delivered until paid	787

Waiver by consignee	789

Carriers right to receipt or surrender of bill of lading	790

Duty to storeLiability as warehouseman	791

CHAPTER LXXII	795

Excuses for nondelivery arising from acts of the shipper owner or consignee	797

Seizure under legal processGenerally	803

AttachmentGarnishment	806

Acts of customs officials and collectors of ports	809

Stoppage in transituGeneral doctrine	810

Stoppage in transituNot defeated by seizure under legal process 2318 Who may exercise the right of stoppage in transitu	814

Against whom the right of stoppage in transitu may be exercised	815

Mode of exercising the right of stoppage in transituDuty of carrier to give notice	817

Termination of the right of stoppage in transitu 2322 Effect of stoppage in transitu	821

Adverse claimantsProcedure on part of carrierInterpleader	822

CHAPTER LXXIII	824

Railroad companies are common carriers of live stock	825

No liability for injuries arising from inherent nature of stock	826

Duty to receive and carry	828

Liability for negligence	829

Burden of proof as to negligence	832

Duty towards overheated animalsPiling up	833

Overpacking crates used for shipment of fowls 2337 Extraordinary climatic conditions	835

Rule where owner accompanies the stock	836

Care in the transportation of sick or pregnant animals 2340 Exposure of animals to disease 2341 Duty to set aside car containing frightened animals	839

Contributory negligence of owner	840

Care as to make up and management of train 2344 Cars and appliancesTerminal charges	843

Further with reference to yards and pens	848

Loading and unloading	850

Duty to feed water and care for stock	851

Statutory regulations	854

Liability for delay	858

Liability for loss or failure to deliver	861

Liability of connecting carriers in the transportation of live stock 2352 Limiting liability	865

CHAPTER LXXIV	868

Generally	870

Who is liable for freight charges	872

Amount of compensation	874

How compensation is calculated	878

Compensation prorata itineris 2365 Excessive and unreasonable charges	881

Rights and remedies where excessive charges are demanded	883

DiscriminationRebates	887

Compensation for special services	889

Demurrage	892

Lien for demurrage	896

Car service association	898

Collecting chargesConnecting carriers	899

Carriers lien for freight	902

Enforcement of lien	905

Waiver and loss of lien	907

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A Treatise on the Law of Railroads: Containing a Consideration of ..., Volume 4
Byron Kosciusko Elliott,William Frederick Elliott
No preview available - 1922

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Title	A Treatise on the Law of Railroads: Containing a Consideration of the Organization, Status and Powers of Railroad Corporations, and of the Rights and Liabilities Incident to the Location, Construction and Operation of Railroads; Together with Their Duties, Rights and Liabilities as ..., Volume 4 Volume 4 of A Treatise on the Law of Railroads: Containing a Consideration of the Organization, Status and Powers of Railroad Corporations, William Frederick Elliot A Treatise on the Law of Railroads: Containing a Consideration of the Organization, Status and Powers of Railroad Corporations, and of the Rights and Liabilities Incident to the Location, Construction and Operation of Railroads; Together with Their Duties, Rights and Liabilities as Carriers, Including Both Street and Interurban Railways, William Frederick Elliott
Authors	Byron Kosciusko Elliott, William Frederick Elliott
Edition	3
Publisher	Bobbs-Merrill Company, 1922
Original from	Harvard University
Digitized	8 May 2008

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