66 66 66 66 judgment of the Court, "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 pro"tection shall be restored, it must be considered that the master takes upon himself the responsibility of any accident that may occur during that period." Holmes v. Clarke. This decision was upheld on appeal by the Court of Exchequer Chamber (though, as to some of the judges, mainly upon the ground that, independently of any statutory duty or obligation, there was negligence in the defendant in not fencing the machinery on which the plaintiff was employed); 7 H. & N. 937; 31 L. J. Ex. 356; 9 L. T. N. S. 178. In the case of Britton v. The Great Western Cotton Co., L. R. 7 Ex. 130; 41 L. J. Ex. 99; 27 L. T. N. S. 125; 20 W. R. 525; the facts were as follows: The deceased, B., who was twenty-two years old, entered the defendant's service as a coal-trimmer on the 27th September, 1870. He was promoted to be an engine-driver on the 11th October, and on the 14th was requested to grease the bearings between the fly and spur wheel of a steam-engine. The fly-wheel was 15 feet, and the spur-wheel 16 feet in diameter. At the time of the accident which caused his death, he had been five days at his work. In order to do it, he had to stand on a wall in a cavity made for the purpose, into which he crawled through the spokes of the fly-wheel, which was on his left hand, revolving in a wheel-race in the engine-house at the rate of fifty-six revolutions a minute; the spur-wheel being on his right hand, revolving at the same rate, in a room in the factory. The wall was 2 feet 6 inches thick, and the utmost distance between the spokes of the two wheels was 2 feet 10 inches. The wheel-race in which the fly-wheel revolved was fenced in the enginehouse along its outer edges, but was unprotected on the wall side at the place where B. was placed to do his work. On the sixth morning of his employment he was caught up by the fly-wheel, whirled into the air, and killed. The action was then brought under Lord Campbell's Act, to recover the pecuniary loss caused to his widow and child by his death. The learned judge, Brett, J., having ruled at the trial that there was an unqualified duty to fence the wheelrace, not being otherwise secured, close to its edge, the jury found, first, that the place in question was the edge of a "wheel-race (about which there had been some conflict of evidence); and, secondly, that the deceased had not been guilty of contributory negligence either in undertaking the employment or whilst engaged upon it. A rule having been afterwards obtained, upon leave reserved, on the grounds, amongst others, that there was no statutory duty to fence the place in question, and that the deceased had voluntarily incurred the risks incidental to his employment, it was held by the Court of Exchequer, first, That the defendants were bound under 7 & 8 Vict. c. 15, s. 21, to fence the place where B. had to stand, it being the edge of a wheel-race “not otherwise “secured;” and, secondly, that the dangerous character of the employment was not so obvious as that he must necessarily be taken to have known it; and that, even assuming he did know it, that circumstance was not enough to constitute him a "volunteer" in such a sense as to exonerate the defendants from liability for the consequences of their breach of their statutory duty. A., an operative in a factory, sued B., the owner, for an injury alleged to have happened in the course of his employment, by reason of a certain shaft in motion for the manufacturing process then going on, not having been securely fenced pursuant to 7 & 8 Vict. c. 15, s. 21. B. pleaded that it was the duty of A., at the time of the accident in question, to put a certain belt upon one of the drums attached to the shaft, which were beyond the reach of A. unless he raised himself above the level of the floor; that it was a positive and known rule of the factory not to put a belt upon a drum by hand, nor otherwise than by a crutch, which was provided for that purpose; and that A. had been expressly forbidden to attempt putting the belt on by hand or without using the crutch; and that A., in violation of the rule and express command, by means of a certain board insecurely placed at a height upon the floor, proceeded to put the belt with his hand, and without the aid of the crutch, upon the drum attached to the shaft; whereby, and not by the defendant's default, the injury happened. Upon demurrer to this plea it was held that the defence was a good answer to the action. M'Cracken v. Dargan, 1 Irish Jurist, N. S. 404 (Q. B.). Again, the owner or occupier of the factory, by neglecting to provide sufficient fencings, or to take reasonable precautions to pre Sect. 6. VI. Where an inspector considers that in a factory any part of the machinery (m) of any kind moved by steam, water, or other mechanical power, machinery, to which the foregoing provisions of this Act with of which notice is given by inspector. respect to the fencing of machinery do not apply, is not securely fenced, and is so dangerous as to be likely to cause bodily injury to any person employed in the factory, the following provisions shall apply to the fencing of such machinery: vent accidents from dangerous machinery, may render himself liable to an action at the suit of any injured person, founded upon his common law duty in that respect, and independently of any statutory provisions. Holmes v. Clarke, ubi supra (Exch. Ch.). For the doctrine is, that, where a servant is employed on machinery, from the use of which danger may arise, it is the duty of the master to take due care and to use all reasonable means to guard against and prevent any defects from which increased and unnecessary danger may arise. Id.; Barton's Hill Coal Co. v. Reid, 3 Macq. H. L. C. 266, 288; Roberts v. Smith, 2 H. & N. 213; 26 L. J. Ex. 319; Ashworth v. Stanwix, 30 L. J. Q. B. 183; 3 E. & E. 701; Mellors v Shaw, 1 B. & S. 437; 30 L. J. Q. B. 333; Watling v. Oastler, 40 L. J. Ex. 43. But in this action, as in that founded upon the statutory liability, the contributory negligence of the plaintiff will afford a good defence; vide supra, p. 7. Moreover, although the machinery may be sufficiently fenced to satisfy both the statutory and the common law duty in that behalf (see ante), the owner may, notwithstanding, render himself liable for injuries incurred by his work-people in the use of it by reason of his (the owner's) negligence in the use of the machinery; as by employing a young person about it quite inexperienced in its use; or with directions which are improper and which are likely to lead to danger of which the young person is not aware, and of which the owner is aware; "for, as it is his duty to take reasonable care "to avert such danger, he is responsible for any injury which may ensue from the use of such machinery." Per Cockburn, L. C. J.; Grizzle v. Frost, 3 F. & F. 622. (m) Including any driving strap or band. Sub-s. 6. c. 16. (1.) The inspector shall serve on the occupier of Sect. 6. the factory a notice requiring him to fence the part of the machinery which the inspector so deems to be dangerous : (2.) The occupier, within seven days after the receipt of the notice, may serve on the inspector a requisition to refer the matter to arbitration; and thereupon the matter shall be referred to arbitration, and two skilled arbitrators shall be appointed, the one by the inspector and the other by the occupier; and the provisions of the Companies Clauses Consolidation Act, 1845, 8 & 9 Vict. with respect to the settlement of disputes by arbitration (n) shall, subject to the express provisions of this section, apply to the said arbitration, and the arbitrators or their umpire shall give the decision within twenty-one days after the last of the arbitrators, or, in the case of the umpire, after the umpire is appointed, or within such further time as the occupier and inspector, by writing, allow; and if the decision is not so given the matter shall be referred to the arbitration of an umpire to be appointed by the judge of the county court within the jurisdiction of which the factory is situate : (3.) If the arbitrators or their umpire decide that it is unnecessary or impossible to fence the machinery alleged in the notice to be dangerous, the notice shall be cancelled, and the occupier shall not be required to fence in pursuance thereof, and the expenses of the arbitration shall be paid as the expenses of the inspectors under this Act: (n) 8 & 9 Vict. c. 16, ss. 128-134. Sect. 6. Sect. 7. (4.) If the occupier does not, within the said (6.) For the purpose of this section and of any machinery" shall be deemed to include any driving strap or band. VII. Where an inspector considers that in a Fencing of factory or workshop (o) a vat, pan, or other structure, (0) It will be observed that the application of this section is not confined to factories, as are sections 5, 6, 8, 9. And it will also be observed, that its requirements extend only to those structures |