if the servant, by his own negligence in knowing and disregarding HOLMES the danger, has materially contributed to the accident. (WILDE, B. Here the jury found that the plaintiff was not guilty of negligence in continuing in the service.) The plaintiff, being aware that the defendant was guilty of an infraction of the law, was in one sense an abettor of it. (POLLOCK, C. B.: The neglect of the master to fence machinery is not such an offence as to render the servant an accomplice.) If the plaintiff is entitled to recover, every master will be liable who permits a servant to enter upon and pursue an occupation which the servant knows to be hazardous. The plaintiff, who was a weekly servant, should have left the service: having chosen to continue, it was at his own risk: Skipp v. The Eastern Counties Railway Company (1), Assop v. Yates (2), Dynen v. Leach (3), Priestley v. Fowler (4). (POLLOCK, C. B.: The doctrine on this subject has arisen since Lord Abinger took his seat in this Court: *before that time there is no instance of such an action. In subsequent cases the doctrine has been somewhat qualified. If the master is aware of some defect in his machinery, or that a rope or a scaffold is not safe, and he directs his servant to use it, he is responsible. It must not be assumed that in no case can a servant maintain an action against his master in respect of injury caused by a fellow servant. It would be quite consistent with the authorities if we were to hold that a footman might recover against his master for injury arising from the neglect of the coachman or groom, the services being different (5). WILDE, B.: The whole doctrine is thoroughly elaborated in Senior v. Ward (6).) (He also referred to Hutchinson v. The York, Newcastle and Berwick Railway Company (7), and Wigmore v. Jay (8).) POLLOCK, C. B., now said: This was an action for an injury sustained by the plaintiff while in the service of the defendant, who was a cotton spinner, and whose machinery ought to have been protected, but was not, in consequence of which the plaintiff sustained the injury. The facts of the case are shortly these: When the plaintiff entered into the defendant's service, the machinery was protected by an iron guard; but, after he had been some months in the (1) 96 R. R. 679 (9 Ex. 223). (2) 115 R. R. 793 (2 H. & N. 768). (3) 112 R. R. 918 (26 L. J. Ex. 221). (4) 49 R. R. 495 (3 M. & W. 1). (5) See Abraham v. Reynolds, 120 R.R.-VOL. CXXIII. R. R. 513 (5 H. & N. 143). (6) 117 R. R. 255 (1 El. & El. 385). 36 v. CLARKE. [ *357 ] service, the guard was broken either by accident or decay, and the machine remained unprotected. The plaintiff complained of it more than once, and was told that the guard should be restored. This was not done; and whilst the plaintiff, in the course of his duty, was oiling the machinery, he sustained the injury for which the action was brought. At the trial, before my brother Wilde, a verdict was found *for the plaintiff, and leave was reserved to the defendant to move to enter a nonsuit on the grounds submitted by his counsel. Two points were made: one a matter of fact, the other of law. First, it was said that the plaintiff had caused the injury by his own negligence; but the jury expressly found that the plaintiff was not guilty of negligence either in the manner in which he oiled the machinery or in remaining in the defendant's service after the protection was removed from it. Therefore the rule on that ground fails. The point of law was, that the plaintiff having undertaken a dangerous service, with knowledge of the danger, could not recover damages in consequence of an injury which ensued from the risk which he had voluntarily undertaken; and the case of Priestley v. Fowler (1) was relied on, which was certainly a case of the first impression, and has given rise to what may almost be called a new branch of the law. We are also of opinion that on this point the rule ought to be discharged. Where machinery is required by Act of Parliament to be protected, so as to guard against danger to persons working it, if a servant enters into the employment when the machinery is in a state of safety, and continues in the service after it has become dangerous in consequence of the protection being decayed or withdrawn, but complains of the want of protection, and the master promises to restore it, but fails to do so, we think he is guilty of negligence, and that if any accident occurs to the servant he is responsible. Many cases might be put in which a servant might reasonably incur the risk instead of abandoning the service; and if, during a period when the danger of the service is increased by the machinery becoming unprotected, either by accident or from other cause, the servant complains and the master promises that the protection shall be restored, it must be considered that the master takes upon himself the responsibility of any accident that may occur during that period. For these reasons we are of opinion that the plaintiff is entitled to recover in this action, and the rule to enter a nonsuit or grant a new trial must be discharged. (1) 49 R. R. 495 (3 M. & W. 1). Rule discharged. SEYMOUR v. GREENWOOD (1). (6 H. & N. 359-365; S. C. 30 L. J. Ex. 189; 9 W. R. 518.) The plaintiff, a passenger by an omnibus, while being forcibly removed from it by the guard in charge, was thrown on the ground and seriously injured. The proprietor of the omnibus, on being applied to for compensation, stated that the plaintiff was drunk and had refused to pay his fare. On cross-examination the plaintiff did not deny that he had been drinking: Held, that if the guard intended to put the plaintiff safely out of the omnibus, there was evidence that in so doing he was executing the commands of the proprietor his master; and that if the injury was caused by the guard acting without due care in executing such command the proprietor was responsible. DECLARATION. That the plaintiff was a passenger for reward in and upon a certain carriage of the defendant, used for the conveyance of passengers in a certain public street in the city of Manchester, to wit Chester Road, and being and while he was such passenger, the defendant and his servants so negligently and improperly conducted themselves in and about the driving, managing and conducting of the said carriage, that the plaintiff was thereby cast from the said carriage to the ground with great violence, and his skull was fractured and his legs crushed and bruised, and he suffered great personal injuries, &c. Pleas: First, Not guilty. Secondly, that the plaintiff was not a passenger. At the trial, before Blackburn, J., at the last Liverpool Spring Assizes it appeared that the action was brought against the defendant, the proprietor of an omnibus, by the plaintiff, who had been forcibly removed from the omnibus by the guard in charge of it, whereby the plaintiff's skull was fractured. The plaintiff's witnesses *proved that the plaintiff pulled the wire and the bell rung. The guard then went into the omnibus and seized the plaintiff by the collar. The plaintiff offering no resistance, the guard backed himself out of the omnibus, drawing the plaintiff after him, and threw the plaintiff upon the road. The plaintiff fell to the ground, and a cab, coming up, went over him. The guard did not fall. This was in August, 1859. In December the plaintiff's attorney wrote to the defendant as follows. 66 SIR, I have been requested by Mr. Seymour to write to in reference to the serious injuries he sustained at the hands of your servants on the 22nd of August last. you "I may state that he was a passenger on that day in your omnibus, &c. He signalled the guard to stop and let him (1) Affirmed in Ex. Ch., 7 H. & N. 355, post, p. 568. Cited, Poulton v. L. & S. W. Rail. Co. (1867) L. R. 2 Q. B. 534, 36 L. J. Q. B. 294; Walker v. S. E. Rail. Co. (1870) L. R. 5 C. P. 640, 39 L. J. C. P. 346; Bayley v. M. S. & L. Rail. Co. (1873) L. R. 8 1861. Jan. 20. [359] [ *360 ] alight. By the negligence and improper conduct of the guard, "Mr. JOHN GREENWOOD." "R. W. STEAD.” In consequence of that letter a person named Baxter called on the plaintiff's attorney. He said that Mr. Seymour was mistaken in signalling the guard to stop; that he was drunk, and had refused to pay his fare; that he had created a disturbance in the omnibus lower down the road; that he had first assaulted the guard, and that there had been a scuffle, and that in the scuffle they had both rolled out into the road. On cross-examination, the plaintiff said his memory was much affected by the accident, but he believed he was not drunk at the time, but he admitted that he had been drinking. At the conclusion of the plaintiff's case, the defendant's counsel submitted that there was no evidence to charge the defendant with the assault committed by his servant, which was not any negligence in the performance of his duty, but an unwarrantable assault; and a verdict was entered for the plaintiff with leave to the defendant to move to enter a nonsuit, if the Court should be of opinion that there was no evidence on which the jury might reasonably find that the act of the servant was one for which the defendant was answerable. T. Jones having obtained a rule "to show cause why the verdict found for the plaintiff on the trial of this cause, &c., should not be set aside, and a nonsuit entered on the ground agreed upon, that there was no evidence to go to the jury," Monk and Wheeler now showed cause: The question is, whether, at the time when the act complained of was committed, the guard was acting as the servant of the defendant. In Rex v. Gutch (1), Lord TENTERDEN ruled that the proprietor of a newspaper, who intrusts the conduct of the publication to one whom he selects, is criminally answerable for a libel published in such newspaper, though it is not shown that he was individually concerned in the particular publication. One of the tests whether the maxim" respondeat superior" applies is, whether the party was enabled to do the wrongful act by reason of his employment. Here there was (1) 31 R. R. 744 (Moo. & Mal. 433). SEYMOUR T. evidence that the plaintiff was drunk, and it may well have been the duty of the guard to remove him in a careful manner. GREENWOOD. The removal of the plaintiff from the omnibus was then an act done by the guard with the defendant's authority, and, in the ordinary course of the employment entrusted to him; and it was, therefore, an act for which the defendant is responsible: *Patten v. Rea (1). The defendant does not suggest that the act of the guard was malicious. (POLLOCK, C. B.: In removing the plaintiff from the omnibus, the guard seems to have acted so carelessly as to injure the plaintiff. MARTIN, B.: The only question is whether there was evidence for the jury.) T. Jones, in support of the rule: It may be conceded that the question is whether there was any evidence for the jury. It is submitted that the guard was a trespasser, and that the defendant is not liable for his act. A master is not liable for the trespass of his servant. (MARTIN, B.: If a servant drives his master's carriage against another, the servant is liable in trespass, the master in case.) Was the act one which the relation between the guard and the defendant warranted him in doing? A master is not liable except for acts of omission on the part of the servant-not for acts of commission. Here what is complained of is a trespass -an act committed-not an act of omission, such as negligence. in driving or managing the omnibus. By the concurrent testimony of all the witnesses, without provocation the guard dragged the plaintiff out of the omnibus, and threw him on the ground. (CHANNELL, B.: Suppose the plaintiff, being a passenger, had grossly misconducted himself, the guard would have been justified in removing him without unnecessary violence. Therefore, if the representation of Baxter is well founded, it may show that the guard had the authority of the defendant to remove the plaintiff, and, in so doing, was engaged in the business of his master: Mitchell v. Crassweller (2).) M'Manus v. Crickett (3) shows that a master is not liable in trespass for the wilful act of his servant, as by driving his master's carriage *against another, done without the direction or assent of the master. (1) 109 R. R. 800 (2 C. B. N. S. 606), (2) 93 R. R. 517 (13 C. B. 237). (3) 5 R. R. 518 (1 East, 106). [ *362 ] [ *363 ] |