man sustaining the injury should both be engaged in performing the same or similar acts. The driver and the guard of a stage-coach, the steersman and the rowers of a boat, the workman who draws the red hot iron from the forge and those who hammer it into shape, the engineman who conducts a train and the man who regulates the switches or the signals, are all engaged in common work. And so, in this case, the man who lets the miners down into the mine in order that they may work the coal, and afterwards brings them up together with the coal which they have dug, is certainly engaged in a common work with the miners themselves. They are all contributing directly to the common object of their common employer in bringing the coal to the surface."

On the other hand, it was said by the Lord Ordinary, in M'Naughten v. the Caledonian Railway Company,* that "It may be that the two persons, viz., the wrongdoer and the injured, though both at the time servants of one master, are engaged in different operations and in distinct departments of work. A dairymaid is bringing home milk from the farm and is carelessly driven over by the coachman. A painter or slater is engaged at his work on the top of a high ladder placed against the side of a country house, and is injured by the carelessness of the gardener, who wheels his barrow against the ladder and upsets it. A clerk in a shipping company's office is sent on board a ship belonging to the company, with a message to the captain, and he

* 28 Law Times, 376,

meets with injury by falling through a hatchway, which the mate has carelessly left unfastened, although apparently closed. A ploughman is at work on a piece of ground held by a railway company and adjacent to a railway, and is, while in the employment of the company, killed by an engine which, through the rashness or carelessness of the engine-driver, leaps from the line of rails into the field. In such and similar cases it could hardly be contended that the rule laid down in Priestley v. Fowler (i.e., the rule as to a master not being liable to one servant for the carelessness of a fellow-servant) would apply."

A person who volunteers to assist a servant in his work is in the same position as the servant as to the right of action against the master.

Although a master is not liable to one servant for the negligence of a fellow-servant (except under the circumstances we have mentioned), he will be responsible for any accident which occurs to a servant through his (the master's) own personal negligence or interference.*

Where an injury happens to a servant while in the actual use of an instrument, engine, or machine, of the nature of which he is as much aware as his master, and the use of which is the proximate cause of the injury, he cannot recover against his master unless the injury

* This principle may be illustrated by a case in which a master builder, who directed a labourer to make a scaffold out of wood which he knew to be unsound, was held to be liable for damages to one of his workmen whose leg was broken in consequence of the scaffold giving way.

arose through the personal negligence of the master. And it is no evidence of personal negligence on the part of the master that he has in use in his work an engine or machine which is less safe than some other which is in general use.

A master is, however, bound to exercise due care in having his machinery and tackle in a proper condition, so as to protect his workmen against unnecessary risks.* And if a master orders a servant to use machinery, tackle, or implements which are known by the master, but are not known by the servant, to be unsound or unsafe, the master would in that case be liable to indemnify the servant against the result of using such insecure apparatus. But where the cause of danger or mischief is known equally to the servant and to the master, the servant cannot then bring an action should an accident occur. He went to work with his eyes open, and he must take the consequences of his own temerity if he chose to work with a machine or tackle of the insecure condition of which he was fully aware.†

*As an illustration of this rule, we may cite the following case, where a workman (employed by a railway contractor) whose duty it was to uncouple the waggons, on stepping on the break for that purpose, it slipped down with him, in consequence of there being no block on it, which it was the duty of the contractor to have seen attached, and the workman was injured, the master was held liable, as the machinery was insufficient, Gray v. Brassey, 15 Sec. Ser. 135.

It was, however, held by the late Mr. Justice Willes, in Holmes v. Worthington, 2 F. and F. 533, that when a servant, knowing of a defect in machinery which he has to work in his master's employ, complains of it to him, but continues in the use of it, in the reasonable expectation of its being repaired, and an accident happens

Mr. Manley Smith, in his work on this subject,* also suggests that "where a master employs boys and girls, or inexperienced workmen, and directs them to act under the superintendence and obey the orders of a deputy, whom he puts in his place, it may be that they are not, within the meaning of the rule, employed in a common work. They are acting in obedience to the express commands of their employer, and if he by the carelessness of his deputy exposes them to improper risks, it may be that he is liable for the consequences."

We have spoken thus far of the duties and liabilities. of the master under the common law. But more extensive duties and liabilities fall upon him under the statute law in certain cases. Various acts of parliament have from time to time been passed for the protection of particular classes of workmen; and whenever any such act imposes upon the master a duty for the protection of the servant, the servant can bring an action against the master for any breach of the statutory regulations whereby he has sustained injury.†

In a subsequent chapter we shall notice succinctly some of the more important enactments of this class. (See post, Chapter XIX., p. 177.)

through its defective condition, he is not precluded from recovering against his master.

* The Law of Master and Servant, p. 156.

This right is not taken away by the imposition of penalties by the statute for the benefit of the injured person.

CHAPTER V.

OF WAGES.

When Wages are payable.-How their Amount or Rate is ascertained. -When Servant is entitled to extra Wages for extra Work.-Must be paid in Money in certain Trades.-Stoppages from Wages.Receipts for, and Presumption of Payment of.-Death of Master or Servant.-Recovery of Wages.-Cannot be attached.

THE mere fact that one person has done work or service for another, does not necessarily imply an obligation to pay wages. The work or service may, especially in the case of near relatives, have been rendered gratuitously; or it may be, that in the case of domestic or other servants living in their master's house, their board, lodging, &c., are an adequate payment. To entitle a person to recover wages there must be a contract that he should receive them.

At the same time it does not follow from this that it is necessary to prove an express contract, either verbally or in writing, in order to entitle a servant to recover wages. A contract to that effect may be implied from the circumstances of the case, and as a general rule it is almost certain that a jury or a countycourt judge would imply a contract to pay wages whenever they had before them evidence that one person, not