family with meat of a quality injurious to the health; of the builder, for a defect in the foundation of the house, whereby it fell, and injured both the master and the servant by the ruins. "The inconvenience, not to say the absurdity, of these consequences, afford a sufficient argument against the application of this principle as to the present case. But in truth, the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. He is no doubt bound to provide for the safety of his servant, in the course of his employment, to the best of his judgment, information, and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master. In that sort of employment especially, which is described in the declaration in this case, the plaintiff must have known as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely. In fact, to allow this sort of action to prevail, would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him; and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sustain by the negligence of others engaged under the same master, than any recourse against the master for damages could possibly afford. We are therefore of opinion, that the judgment ought to be arrested." The principles upon which the case of Priestley v. Fowler was decided, have been recently supported and followed by the Court of Exchequer in two other cases of a similar nature, the former of which it will be convenient to mention at some length, as the principles involved are of extensive application. That was the case of Hutchinson v. The York, Newcastle and Berwick Hutchinson Railway Company (h). The nature of the case suffi- v. The York, (h) 5 Exc. 343; S. C. 19 L. J., N. S., Exc. 296. A case of a very similar cha- and Berwick Railway Newcastle ciently appears from the judgment of Alderson, B., who said, "The question is, whether the defendants are liable for the injury occasioned to one of their own servants by a collision, while he was travelling in one of their carriages in discharge of his duty as their servant; in respect of which injury they would undoubtedly have been liable if the party injured had been a stranger, travelling as a passenger for hire. We think that they are not. This case appears to us to be undistinguishable in principle from that of Priestley v. Fowler." His Lordship then proceeded to state that case; to explain the principle upon which a master is, in general, liable for accidents resulting from the negligence or unskilfulness of his servant, and to shew that a servant could not recover against his master for injury sustained in consequence of his own unskilfulness or negligence. He then continued: "The difficulty is, as to the principle applicable to the case of several servants employed by the same master, and an injury resulting to one of them from the negligence of another. In such a case, however, we are of opinion that the master is not, in general, responsible. Put the case of a master employing A. and B., two of his servants, to drive his cattle to market: it is admitted, if, by the unskilfulness of A., a stranger is injured, the master is responsible; not so if A., by his in America; and the decision gence, negligently put or left a switch across the railway, whereby the engine and cars were thrown off the line and the engineer was severely injured. He brought an action for the injury sustained against the company, but it was held, upon full argument, that the action was not maintainable, but should have been brought against the wrongdoer himself. Mr. Chief Jus. tice Shaw, in delivering judg. ment, went into an elaborate examination of the whole subject, and among other authorities cited, with approval, the case of Priestley v. Fowler. See Story on Ag. sect. 453 e, note (1). unskilfulness, hurts himself; he cannot treat that as the want of skill of his master (i). Suppose, then, that by the unskilfulness of A., B., the other servant, is injured, while they are jointly engaged in the same service; there, we think B. has no claim against the master; they have both engaged in a common service, the duties of which impose a certain risk upon each of them, and in case of negligence on the part of the other, the party injured knows that the negligence is that of his fellow-servant, and not of his master. He knew when he was engaged in the service, that he was exposed to the risk of injury, not only from his own want of skill or care, but on the part of his fellow-servant also, and he must be supposed to have contracted on the terms that, as between himself and master, he would run that risk. Now, applying these principles to the present case, it follows that the plaintiff has no title to recover. H., the deceased (k), in the discharge of his duty as one of the servants of the defendants, had put himself into one of their railway carriages under the guidance of others of their servants, and by the neglect of those other servants, while they were engaged together with him in one common service, the accident occurred. This was a risk which H. must be taken to have agreed to run when he entered into the defendants' service, and for the consequences of which, therefore, they are not responsible. The declaration, indeed, states the accident to have arisen from the combined neglect of the servants who were managing the carriages in which the deceased was travelling, and other of their servants who were managing the train with which the plaintiff's carriage came into collision; and it was argued that this allegation is divisible, and, in order to sustain the declaration, it would not be necessary to prove any negligence on the part of the train in which H. was travelling; but it would be sufficient to prove negligence on the part of the other train, and so it was contended, that even admitting the defendants would not be liable for any neglect (i) Semble, the non liability of the master in that case would proceed from the principle of avoiding circuity of action, as the servant himself would be liable over again to his master, an objection which would not apply to holding a master responsible to one servant for the tortious acts of another. (k) The action was brought by his administratrix under the stat. 9 & 10 Vict. c. 93. on the part of those who were managing the train in one of the carriages of which H. was travelling, yet there could be no principle exempting them from liability for the acts of those who, though equally with H. servants of the defendants, were not at the time of the accident engaged in any common act of service with him. But we do not think there is any real distinction between the two cases. The principle is, that a servant when he engages to serve a master, undertakes as between himself and his master to run all the ordinary risks of the service, and this includes the risk of negligence upon 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 death of II. appears on these pleadings to have happened while he was acting in the discharge of his duty to the defendants as his masters, and to have been the result of carelessness on the part of one or more other servant of servants of the same masters, while engaged in their service. And whether the death resulted from mismanagement of the one train, or of the other, or of both, does not affect the principle; in any case it arose from carelessness or want of skill, the risk of which the deceased had as between himself and the defendants agreed to run. It may, however, be proper, with reference to this point, to add that we do not think a master is exempt from responsibility to his servant for an injury occasioned to him by the act of another servant where the servant injured was not at the time of the injury acting in the service of his master. In such a case, the servant injured is substantially a stranger, and entitled to all the privileges he would have had if he had not been a servant. It was contended that the plea in this case (1) is bad on special demurrer, as being but an argumentative denial of the cause of action stated in the declaration: but this objection is unfounded. Though we have said that a master is not responsible generally to one servant for any injury caused to him by the negligence of a fellow-servant while acting in one common service, yet this must be taken with the qualification that the master shall have taken care not to expose his servants to unreasonable risk. The servant, when he engages to run the risk of his service, including (1) The plea in substance was, that the collision took place solely by the negligence, &c., of the defendants' servants, who were severally fit and competent persons. those arising from the negligence of fellow-servants, has a right to understand that the master has taken reasonable care to protect him from risk by associating him only with persons of ordinary skill and care; and the real object of the plea in this case is, to shew that the defendants had discharged a duty, the omission to discharge which might have made them responsible to the deceased. The plea, therefore, appears not to be open to the objection insisted on. For these reasons, we are of opinion that the plaintiff has shewn no ground of action, and so our judgment must be for the defendants.” The other case above referred to is Wigmore v. Wigmore v. Jay (m), in which, upon similar principles, it was held, Jay. that a master builder was not liable to an action at the suit of the administratrix (n) of a bricklayer, who was killed by reason of the falling of the scaffold on which he was working. The scaffold was erected under the superintendence of the defendant's foreman, the defendant not being present, and was constructed by the men in the employ of the defendant, the deceased not being one of them: and the falling of the scaffold was caused by the unsoundness of one of the ledgers or horizontal poles employed in its construction. (m) 5 Exc. 354; S. C. 19 L. J., N. S., Exc. 300; and see Seymour v. Maddox, 20 L. J., N. S., Q. B. 327, where it was held, that the manager of a theatre was not liable to an action at the suit of a singer for injuries sustained by (n) This action was also |