path at night fell into a hole or trench over the drain and sustained injury. Mr. Justice Blackburn, who tried the cause, held that there was no evidence to go to the jury that Hubble had acted as the servant of Pullen, but as a contractor for the work, and that Pullen was not within the scope of the above-mentioned sections of the Metropolis Local Management Act, so as to be responsible for the performance of the work. A verdict was found against Hubble, with £65 damages, the judge directing a verdict to be entered for the defendant Pullen, reserving leave to move to enter the verdict against him also. Upon this motion being made, the Court of Queen's Bench unanimously refused the rule, holding that the statute did not take the case out of the common doctrine that, if a person in the exercise of a right employs a contractor to do work, and the contractor is guilty of negligence in doing it, from which damage results, he, and not the employer, is liable. The Court of Exchequer Chamber, however, overruled the Court of Queen's Bench, and held that Pullen was liable to the plaintiff for the injury, upon the ground that “a duty was implied in the grant of the power to open the drain in the highway in section 79 of the Act, and was expressed in section 110, and that the statutable duty was created absolutely, and not by section 111, imposing a penalty, to be enforced solely by enforcing the penalty, and that the penalty imposed by section 111 was a cumulative remedy." I must confess that this reasoning is not at all satisfactory to my mind. The statutable duty is no doubt created absolutely for the purposes of the Act, but it is a duty which, if unperformed, can only be enforced by the penalty; and this, for the protection of the public, is to be recovered against the owner or occupier who causes the work to be done. If an individual sustains an injury in consequence of the work being imperfectly or improperly performed, a civil liability is not imposed upon the owner, if without the statutable obligation he would not have been liable. The remedy is in one sense cumulative, because the imposition of the penalty by statute does not take away the civil remedy; but the two proceedings have totally different objects—the one to punish an offence, the other to redress an injury. For the sake of the public, it may be right to make a person liable for acts which another has done on his account; but it would be a violation of principle to make him civilly responsible for such acts where he is in no legal sense a principal or master of the person doing them. I think, therefore, that the statute of the 23 & 24 Vict. c. 151, cannot have the effect of giving to the pursuers a right of action which they would not have had without it, and that the defence of the deceased being a fellow-workman with Neish is open to the defenders notwithstanding the statute. The interlocutor appealed from ought, in my opinion, to be affirmed. Lord COLONSAY.-Cases of this class have of late years been frequent, and the law applicable to them has been much discussed in both ends of the island, and has been considerably matured by those discussions. The constantly increasing scale on which mining and manufacturing establishments are conducted, by reason of new combinations and applications of capital and industry, has necessarily called into existence extended organizations for management, more gradations of servants, more separation or distribution of duties, more delegation of authority, and less of personal presence or interference of the master. The same personal superintendence and supervision by owners or masters, common and beneficial in some minor establishments, is in many cases unattainable, and, even if attainable, would not be beneficial. The principles of the law, however, have sufficient elasticity to enable them to be applied, notwithstanding such progressive changes in the manner of conducting business. I hold it to be quite clear that the liability of a master for injury done, by the fault or negligence of his servant, falls to be dealt with on different principles where the sufferer is a stranger, and where the sufferer is a fellow-servant engaged in the same common employment. The distinction was fully recognized by Lord Cranworth, and effect was given to it by this house in the case of the Bartonshill Company. Whether the present case does or does not belong to the latter class, it certainly does not belong to the former class. The deceased was not a stranger—he was at the time he received the injury a workman in the employment of the defenders in their coal mine. Neish was also in their employment there. If it is not alleged that there was any personal fault or neglect on the part of the master, on what principle does liability attach to him? Does such liability flow from the nature of the contract of service under which the deceased was working? I think that there are duties incumbent on masters, with reference to the safety of labourers in mines and factories, on the fulfilment of which the labourers are entitled to rely, and for the failure in which the master may be responsible. A total neglect to provide any system of ventilation for the mine may be of that character. Culpable negligence in supervision, if the master takes the supervision on himself, or where he devolves it on others; the heedless selection of unskilful or incompetent persons for the duty, or the failure to provide, or supply the means of providing, proper machinery or materials, may furnish grounds of liability; and there may be other duties, varying according to the nature of the employment, wherein, if the master fails, he may be responsible. But on the other hand, there are risks incident to occupations more or less hazardous, and of which the labourer who engages in any such occupation takes his chance. It is eminently so in regard to mining operations. There are perils of the pit as well as of the other deep--and one of those perils is the risk of the consequences that may, even in the best-regulated pits, result from the carelessness or recklessness or other fault of one or more of those persons composing the organized body engaged in working the mine. The master does not impliedly insure the workman against such perils. Is the fault attributed to Neish one of that character? I think it must be so regarded unless there was something in the relation of Neish to the defenders, or to the deceased, which deprives it of that character. It is not alleged that the general system of ventilation of the pit, as it had existed anterior to the erection of the scaffold, was not good, or that Neish was not a fit man to be placed in the position he occupied. In neither of these respects was there any fault or negligence on the part of the defenders; nor is it alleged that in any other respect there was personal fault on their part. But it is said that Neish was not a fellow-workman of the deceased-that he was in some sense and to some effect a representative of the defenders, holding delegated powers from them, and that they are therefore liable. Now, I agree with what has been said as to the terms "fellowworkman" and collaborateur." They are not expressions well suited to indicate the relation on which the liability or non-liabilty of a master depends, especially with reference to the great systems of organization that now exist. And these expressions, if taken in a strict or limited sense, are calculated to mislead. The same may be said of such words as "foreman " "6 or manager." We must look to the functions the party discharges, and his position in the organism of the force employed, and of which he forms a constituent part. Nor is it of any consequence that the position he occupies in such organism implies some special authority, or duty, or charge-for that is of the essence of such organizationsas for instance in this case, if Bryce is admitted to have been within the principle of a fellow-workman, although he was foreman and underground manager, and had the immediate charge of constructing the scaffold, and was primarily to blame for its defects, if any, Neish was one step higher, and may have been in fault for not detecting Bryce's error; but yet Neish was subordinate to a still higher servant, Jack. They were all links in the same chain. If the master was responsible for injury done to Wilson through the fault of Neish, on the ground that, strictly speaking, they were not fellow-labourers, he would on the same ground have been liable for injury done to Neish through the fault of Wilson. Now the direction of the learned judge, with reference to the circumstances of this case, appears to me to have been objectionable for these reasons—First, it deals apparently with the alleged defect in the scaffold, as if it was a defect in the general arrangement or system of ventilation of the pit for which, in certain views, the defendant might be regarded as liable; whereas, it was a defect in the construction of a temporary structure, erected by order of Neish for certain work ing operations, whereby the free action of a good system of ventilation was temporarily interfered with, which raised a totally different question for the consideration of the jury in reference to the liability of the defendant for the fault of Neish. But the distinction does not appear to have been adverted to. Secondly, it suggests to the jury that if the faulty scaffold was completed before Wilson entered into the employ of the defenders, a liability was imposed on the defenders which would not otherwise have existed, inasmuch as in that case Wilson and Neish could in no view have been fellow-workmen at the time when the fault was committed by Neish. But if it was the duty of Neish to provide for the passage of air upwards in the shaft, that duty did not cease with the erection of the scaffold, but continued while the scaffold remained, and he was in fault so long as that duty was not performed. It was not merely the erection of the scaffold on Saturday, but the maintenance of it in a defective state until Tuesday morning, that caused the injury, if it was really caused by the defective construction of the scaffold; and consequently there was no room for the suggested disconnection of Wilson and Neish as fellow-workmen. Thirdly, the direction points the attention of the jury to the question whether Wilson and Neish stood in the relation of fellow-workmen, engaged in the same common employment, as the test of non-liability, without sufficient explanation of what constituted that relation; and, in particular, without explaining that diversity of duties and gradation of authority are not inconsistent with that relation, and without referring to the effect which might be produced on the liability of the master by a careful selection of proper persons to take charge of different departments in the working of the mine. On the whole, I am disposed to adopt the words of one of the learned judges in the court below, who has said that the case had been "imperfectly and inadequately stated by the judge, and so stated as tending to mislead the jury." At the same time I am not surprised that the learned judge who tried the case should have been embarrassed by the rather unsatisfactory and somewhat conflicting state of the authorities and decisions on a branch of law which has only lately approached maturity. A point was made on the statute of the 23 & 24 Vict., chapter 151. I am not disposed to pronounce any opinion in reference to the effect of that statute. I think there may be questions of considerable nicety arising upon it. It was a public statute, passed for the avowed purpose of giving greater safety to workmen in mines; it imposed duties upon the owners of mines; and a question may be raised whether workmen engaging in the service of a mine-owner may not be entitled to rely upon such duties being performed as being implied in the contract of service. That is a point upon which I do not wish to express an opinion, because the subject we are now dealing with is apart altogether from any such question. Interlocutor affirmed, and appeal dismissed, with costs. Counsel for the Appellants-Quin, Q.C., and Strachan & Junner. AgentsShaen & Roscoe, London; Thomas White, Edinburgh. Counsel for the Respondents-Sir R. Palmer, Q.C.; and Young & Shand. Agents-James Dodds, London; Burns & Alison, Glasgow. INDEX. *The figures at the end of lines refer to the pages. ABATEMENT OF WAGES, power retained in Master and Servant Act, 196. ABBOTT, CHIEF JUSTICE, opinion of, in R. v. Neild, as to combinations of workmen, 116. ABSCOND, summons when party about to, 195. ABSENCE OF EMPLOYER, proceedings against agent in absence, 207. ABSENTING FROM SERVICE, complaint for, 194, 207. ACCIDENTS. See FACTORY ACTS. ACTION against justices and others, limitation of, under Arbitration Act, 143. ADDRESS by Lord Medwyn and reply by Sir Archibald Alison at close of Circuit Court in Glas- parties may agree to arbitrate in other mode than that pointed out by Arbitration may also agree to submit to councils of conciliation other disputes than those referred form of agreement between master and workmen, 316. exempt from stamp duty, 316. ALDERMAN OF LONDON included in term 66 magistrate," 396. boards of, under 5 Geo. IV. c. 96, how they may be constituted, 264. what disputes may be referred under 5 Geo. IV. c. 96, and how preferred, 137, 331 within what time, 137, 138. mode of proceeding, 138. nomination of arbitrators, 331. number of, 138. form of appointment, 332. attendance of parties, 139. parties may act by deputy, 333. day and place for meeting of arbitrators, 138, 139. notice of, to arbitrators, 138, 139. delay or refusal of arbitrators to act, 138. expenses when second arbitrator appointed, 138. form of certificate of second nomination of arbitrators, 333. non-attendance of second arbitrator, 334. investigation of complaint, 139. time for making award, 139, 141. extension of period for making same, 139, 141. disagreement of arbitrators, 139. refusal of, in such case to go before justice, 139. drawing up of award, 141. form of award, 338. extrajudicial arbitration, 250. clause of arbitration to be annexed to trade rules in extra-judicial arbitration, to secure ARBITRATOR. See ARBITRATION. |