pleaded. But this is not so. If it be a judgment in rem, it is conclusive evidence upon the plea that the goods were not the plaintiffs', and there is no necessity to plead it. But, assuming that the judgment is not one in the nature of a judgment in rem, it seems to us nevertheless it must be taken as conclusive. The plaintiffs thought fit to seek their legal remedy in what must be taken to be a foreign court of competent jurisdiction, and judgment has been given against them. We think they are conclusively bound by it. "Interest reipublicæ ut sit finis litium." If a plea were necessary we should permit an amendment. In the present state of the law it would be almost imperative upon us to do so. In our judgment, however, the proceeding is in the nature of one in rem, and no plea is necessary. It is observable that this judgment was given in November 1853, after the conversion, but we think this immaterial. In our opinion its real operation is a conclusive adjudication upon the validity of the sale whereby the transaction has passed in rem adjudicatam, and all controversy upon it ended as between parties and privies to the suit. Verdict for the plaintiffs to be set aside, and a verdict entered for 1858. CAMMELL v. SEWELL. 1858. July !. Plaintiff, a workman, employed with others in sinking a pit, being at the bottom, was injured by the fall of a tub of water which was being drawn up by machinery. hook, and that a jiddy should GRIFFITHS v. GIDLOW. THE declaration stated that the defendant, before and at the time of the committing of the grievances &c., was making and sinking a certain shaft, and was possessed of a certain barrel then by the defendant used for drawing water out of the said shaft, which said barrel was then under the care and management of the defendant and certain other servants of the defendant; and, before the comEvidence was mitting of the said grievances, the plaintiff had contracted given that the tackle was with the defendant to do work for the defendant in and improper, not being fitted about the sinking of the said shaft; and in performance of with a safe that contract was, at the time of the committing of the said grievances, lawfully and by the permission of the defendant in and at the bottom of the said shaft: Yet the defendant, not regarding his duty in that behalf, by himself and his servants in that behalf, took so bad and such little care of the said barrel, and conducted himself by his said servants so negligently in the management thereof when using the same as aforesaid, and the defendant found and provided, and knowingly used and allowed to be used in and for the plaintiff, in his purposes aforesaid, such insufficient and improper machinery, implements and matters, and such insufficient, improper and unfit processes and modes for the purpose aforesaid (a), that, by reason of the premises and of the said negligence and improper conduct of the defendant and his servants in that have been used. The plaintiff worked with the hook making no complaint of it. A jiddy had been provided by the master, who had directed that it should be used when earth was raised. The master's pre sence, had that the jiddy workings several times each day.- Held, that the master was not liable; first, because, assuming the injury to have arisen from the defect of the hook, the workman himself voluntarily used it, and it was not shewn that the injury was not caused by his own rashness. Secondly, because, assuming it to have arisen from the neglect to use the jiddy, the master, having provided a proper apparatus, was not liable for the neglect of the plaintiff's fellow workmen in omitting to use it. (a) The words in italics were not in the declaration as originally drawn, but were inserted in pursuance of leave to amend given at the trial. behalf, the said barrel fell down the said shaft and struck the plaintiff with great violence, and greatly injured the plaintiff, and the plaintiff was thereby knocked down, greatly hurt, permanently lamed, &c. Pleas.-First: Not guilty. Second: That, before and at the time of the committing of the supposed grievances, the plaintiff was the servant of the defendant, working for certain wages &c., and that, at the said time when &c., the plaintiff was in and at the bottom of the said shaft in the performance of his duty as such servant and not otherwise howsoever; and that the plaintiff never contracted with the defendant to work for the defendant in or about the sinking of the said shaft, or otherwise, save to work for the defendant as such servant as aforesaid, at wages as aforesaid. The plaintiff took issue on this plea. At the trial, before Byles, J., at the Liverpool Spring Assizes, it appeared that the plaintiff was a mine sinker employed by the defendant to assist in sinking a shaft or coal pit belonging to the defendant at Hindley, near Wigan, in Lancashire, at daily wages. On the 7th of October, 1857, he was at work at the bottom of the shaft, part of his duty being to assist in filling tubs with water and earth, which, being attached to the rope by the plaintiff himself or his fellow workmen at the bottom, were drawn up to the top by the rope, which ran over a pulley above the mouth of the pit. The following is the mode in which the tubs are raised. The tub is attached to the rope by hooks; the tub is then raised a few feet, and if, on being tried, it is found to be securely hooked, the man at the bottom of the pit cries out" all right," and upon that it is wound up. It was alleged to be the duty of the banksman, when a tub arrives a little above the surface of the ground, to place a jiddy or slide so as to prevent it from falling back when unhooked from the end of the rope. The defendant was in 1858. GRIFFITHS v. GIDLOW. 1858. GRIFFITHS υ. GIDLOW. the habit of coming to the workings several times in the course of the day. He had provided a jiddy, and directed that it should be used when earth was brought up, but not for water. The defendant had employed a competent banksman. On the occasion in question the plaintiff had assisted in filling a tub with water. The tub, having been drawn up to the surface to be emptied, fell from the top upon the plaintiff and injured him. Evidence was given that the jiddy ought to have been used for water as well as earth, and that the hook for attaching the tub to the rope was dangerous, not being fitted with a spring, or sufficiently long. It was suggested that the accident had arisen from the want of a jiddy and the defective hook, the tub having become released from the hook before it was properly landed. The plaintiff knew the hook which was used and had made no complaint of it, but he had complained, in the defendant's presence, that the jiddy was not used for Other workmen had complained of the danger of water. working in the pit with the tackle used. The learned Judge told the jury that the defendant was not liable if the accident was occasioned by the negligence of the plaintiff or his fellow workmen, but that they might find the defendant guilty if they thought that it was caused by the improper omission to use a part of the machinery, if such omission existed by the defendant's order or with his sanction in other words, that the defendant was liable if the accident was occasioned by an improper and dangerous process habitually used by him or with his sanction. The jury found a verdict for the plaintiff. Monk, in Easter Term, had obtained a rule nisi for a new trial on the ground of misdirection in this: that the learned Judge ought to have told the jury that, if the plaintiff knew that the machinery employed was insufficient, or that the course of practice pursued was unsafe, and, not withstanding such knowledge, continued in the defendant's employment, he could not recover; or why the judgment should not be arrested. Knowles and Milward shewed cause (a).-The defendant was guilty of personal negligence in providing improper machinery, which was used under his direction after he had notice that it was unsafe. In Roberts v. Smith (b), a labourer was examining the put-logs of which the scaffold was to be built, when the defendant, the master, stopped him, and told him not to break any more; though in building the scaffold the labourer used only such materials as he thought sufficient: it was held that there was evidence to go to the jury of the master's negligence, upon which they might find for the plaintiff. There the act which immediately caused the accident was that of the plaintiff's fellow servant. That case was not so strong as the present, because here the master had express notice of the dangerous character of the particular machinery which was to be employed. Knowing the danger he ordered the jiddy to be used for earth only. In Paterson v. Wallace (c), it was laid down that "it is the master's duty to be careful that his servant is not induced to work under a notion that tackle or machinery is staunch and secure when, in fact, the master knows, or ought to know, that it is not so. And if from any negligence in this respect damage arises, the master is responsible." The plaintiff seeks to make the defendant, his master, responsible, not for any negligence of his fellow servants, but for the defendant's own neglect in not providing a proper hook. If a rule is to be laid down that a servant shall not recover against his master for an accident occa (a). In Trinity Term, June 3. Before Pollock, C. B., Martin, B., Watson, B., and Channell, B. VOL. III.-N. S. X X (b) 2 H. & N. 213. EXCH. 1858. GRIFFITHS v. GIDLOW. |