Chap. VII. manual labour, shall at all times during the work be securely fenced "so far as is reasonably practicable and consistent with the due and efficient working thereof." But this enactment, for some reason which is not apparent, does not extend to Scotland or Ireland the protection thus given to the English agricultural labourer (s).

(s) 41 Vict. c. 12, s. 2.

CHAPTER VIII.

OF THE DOCTRINE OF COMMON EMPLOYMENT.

Ir was stated, on a preceding page, that as a general rule the wrongdoer is himself alone responsible for the consequences of his act (a); but the case of a servant was pointed out as being an exception to the rule, inasmuch as the law, for reasons of supposed convenience, more than on principle (), makes the master liable to the public for wrongful acts done in the course of the servant's employment.

servant for

It is proposed now to show that the case of a servant Master not causing injury by his negligence to a fellow-servant, affords liable to one an instance of the general rule, and does not fall under acts of the above exception; for, subject to the provisions of the Employers' Liability Act, 1880 (e), the master is not liable to the injured servant.

another.

Fowler.

It seems to have been always considered clear law-or Priestley v. at any rate until 1837 the advocates of the opposite theory shrank from bringing it to the test (d)—that the servant

(a) Ante, p. 83.

(b) Degg v. Mid. R. Co., 26 L. J., Ex. 171, 174. (c) 43 & 44 Vict. c. 42, post, Chap. X.

(d) Per Pollock, C. B., in l'ose v. L. & Y. R. Co., 2 H. & N. 728, 734; 27 L. J., Ex. 249: but see the remark of the same learned judge in Holmes v. Clarke, 30 L. J., Ex. 135, 138. The great authority of Willes, J., may also be cited in support of the view adopted in the text: see Gallagher v. Piper, 33 L. J., C. P. at p. 335. It is quite impossible to suppose that accidents had not been frequently caused by the act of a fellow-servant ever since there was such a thing as a contract of service, and it is in cases where the circumstances are by no means novel, that the want of precedent for the action affords a strong argument that it does not lie,

Chap. VIII. had no remedy against his master for injuries sustained by the negligence of a fellow-servant. In 1837 an action was brought against his master by a butcher's servant who had been injured by the breaking down of a van, owing to its having been negligently overloaded. It appeared that the injured man, though he was riding on it, was not the servant in charge of the van; and the Court, remarking that there was no precedent for the action, held upon general principles that it would not lie; for no duty could be implied on the part of the master to warrant the sufficiency of the van or the mode of loading and conducting it on the part of the other servants. And further, holding that it was the duty of the servant to inform the master of the negligence of a fellow-servant, thought it was better that he should be induced to do so by his desire to provide for his own safety, than that he should have a right to sue his master after having been injured by the negligence of that other (e).

Servant undertakes to run risk of fellow-servant's negligence.

Be this as it may, in a more recent case it was broadly laid down, that a servant undertakes, as between himself and his master, to run all the ordinary risks of the service, and that this includes the risk of injuries caused by negligence on the part of a fellow-servant, when he is acting in the discharge of his duty as servant of him who is the common. master of both. The servant knew when he engaged in the service that he was exposed to the risk of injury from the want of care on the part of his fellow-servants; and he must be supposed to have contracted on the terms that as between himself and his master he would run this risk (ƒ). Indeed it will, no doubt, have occurred to the reader when in the last chapter the proposition was stated that the servant on entering the employment contracted to run the

(e) Priestley v. Fowler, 3 M. & W. 1; 7 L. J., Ex. 42; the judgment of the Court being delivered by Lord Abinger, C. B. Hutchinson v. York, &c. R. Co., 19 L. J., Ex. 296; Wigmore v. Jay, ib. 300.

risks incidental to it, that the risk of negligent acts or Chap. VIII. omissions on the part of his fellow-servants, which might cause him injury, must be included amongst these risks. Thus, in the common instance of an engine-driver in charge of a train, his safety depends upon, and is in some degree entrusted to every signalman upon the line over which he travels. It will be manifest, also, that this risk increases proportionately to the increase in the number of his fellowservants; for the greater the number of signal stations he has to pass the greater the risk of there being negligence at one or other of those stations.

Coal Co. v.

This principle of the master's non-liability was not how- Bartonshill ever acted upon in Scotland until the case of The Bartons- Reid. hill Coal Co. v. Reid (g) came on appeal to the House of Lords, when it was held that the law of Scotland was the same as the law of England on this subject. Lord Chancellor Cranworth delivered an exhaustive opinion, assented to by the rest of their Lordships in the subsequent case of The Bartonshill Coal Co. v. Maguire (h), in which judgment was given on the same day, and adopted in the more recent case of Wilson v. Merry (i). After stating the reasons which justify the wisdom of holding the master responsible to the public for the acts of the servants, his Lordship proceeded:-"But do the same principles apply to the case of a workman injured by the want of care of a fellow-workman engaged together in the same work? I think not. When the workman contracts to do work of any particular sort he knows, or ought to know, to what risks he is exposing himself. He knows, if such be the nature of the risk, that want of care on the part of a fellow-workman may be injurious or fatal to him, and that against such want of care his employer cannot by possibility protect him. If such want of care should occur, and evil is the result, he

Opinion of worth, C.

Lord Cran

Chap. VIII. cannot say that he does not know whether the master or the servant was to blame (). He knows that the blame. was wholly that of the servant. He cannot say that the master need not have engaged in the work at all, for he was party to its being undertaken (). Principle, therefore, seems to me opposed to the doctrine that the responsibility of a master for the ill-consequences of his servant's carelessness is applicable to the demand made by a workman in respect of evil resulting from the carelessness of a fellow-workman when engaged in a common work" (m).

Common employment.

But it is to be observed that the only cases in which the servant stands upon this footing are those in which he has received the injury whilst acting in his master's service from a fellow-servant also so acting; or, in other words, the injured and the negligent persons must have been in a common employment. If the act which caused the injury was not within the scope of the negligent person's employment the master, as has been pointed out ("), would not be responsible. If the injured person was not at the time of the injury acting in the service of his master, he is substantially one of the public, and is entitled to all the rights he would have had if he had not been a servant (o).

(k) It may be added, that he generally knows which servant is to blame, a thing not, as a rule, within the possibility of a stranger's knowledge.

(1) In cases where a member of the public is a party to the work, and is able to hold the master responsible for the servant's negligence, it will be found that the servant's negligence in fact is, or causes a breach of contract by his master, as in the case of a railway accident.

(m) In Bacon's Abridgment, tit. MASTER AND SERVANT (K), it is said, that it is highly reasonable that the master should answer for the acts of his servant, "as in strictness everybody ought to transact his own affairs, and it is by the favour and indulgence of the law that he can delegate the power of acting for him to another." It is obvious that this argument would not lie in the mouth of the servant.

(n) Ante, Chap. IV., s. 1.

(o) Hutchinson v. York, &c. R. Co., 5 Exch. 343, 352; 19 L. J., Ex. 296.