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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 wheel. race, 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. Fencing of other
VI. Where an inspector considers that in a
factory any part of the machinery (m) of any kind dangerous moved by steam, water, or other mechanical power, machinery, to which the foregoing provisions of this Act with
respect to the fencing of machinery do not apply, is given by inspector.
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 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, be 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.
(1.) The inspector shall serve on the occupier of Sect. 6.
the factory a notice requiring him to
the inspector so deems to be dangerous : (2.) The occupier, within seven days after the
receipt of the notice, may serve on the
jurisdiction of which the factory is situate : (3.) If the arbitrators or their umpire decide
that it is unnecessary or impossible to
(n) 8 & 9 Vict. c. 16, ss. 128-134.
(4.) If the occupier does not, within the said
seven days, serve on the inspector a requisition to refer the matter to arbitration or does not appoint an arbitrator within seven days after he served that requisition, or if neither the arbitrators nor the umpire decide that it is unnecessary or impossible to fence the machinery alleged in the notice to be dangerous, the occupier shall securely fence the said machinery in accordance with the notice, or with the award of the arbitrators or umpire if it modifies the notice, and the expenses of the arbitration shall be paid by the occupier, and shall be recoverable from him
by the inspector in the county court : (5.) Where the occupier of a factory fails to
comply within a reasonable time with the requirements of this section as to securely fencing the said machinery in accordance with the notice or award, or fails to keep the said machinery securely fenced in accordance therewith, or fails constantly to maintain such fencing in an efficient state while the machinery required to be fenced is in motion for the purpose of any manufacturing process, the factory shall be deemed not to be kept in conformity
with this Act: (6.) For the purpose of this section and of any
provisions of this Act relating thereto,
machinery” shall be deemed to include
any driving strap or band. Sect. 7. 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