D. C. 1908 LAWSON V. PACKARD Clute, J. occasion he seems to have worked on a drill, but without the foreman's knowledge. The boy admits that on the occasion in question he was not asked by Hill to work the machine, but he supposed he had to work the machine while Hill was away. Even if his story is to be accepted, which I find great difficulty in accepting, still I do not think this offers any shadow of ground for holding that the plaintiff was impliedly authorized to work the machine, or that in doing so he acted within the scope of his employment. He was a mere volunteer, and any obligation of the defendants towards the plaintiff must arise out of their contractual relation. It became the duty of the employer to warn him in respect of any danger in the course of his employment. At common law this duty would be sufficiently performed by employing a competent person to give such warning, even although he might neglect to do so, and this even in the case of an infant. In Cribb v. Kynoch, [1907] 2 K.B. 548, it was held that where the plaintiff, a girl fifteen years old, was employed in the defendants' cartridge factory in the work of testing the gauge of loaded cartridges, under a forewoman, whose duty it was to give her proper instructions and warnings, and in consequence of whose negligent failure to do so, the plaintiff caused a cartridge to explode, thereby sustaining personal injuries, the doctrine of common employment applied, and the defendants were not liable because the duty to give instructions and warning is one which may be delegated to a foreman, and the negligence of the foreman is a risk which a fellow servant, even though an infant, takes upon himself. This case was approved by the Court of Appeal, in Young v. Hoffman Manufacturing Co., [1907] 2 K.B. 646. In the latter case it was held that where the master employs an inexperienced workman upon dangerous work, it is his duty to instruct and caution him, but the master may delegate that duty to a competent person, and if he does so, he will not be liable for an injury to a workman resulting from the negligence of the delegate in not properly instructing or cautioning him, and there is no difference in this respect between an adult and an infant workBoth of these cases are decisions under the common law. It is clear, therefore, I think, that at common law the plaintiff cannot succeed. The statement of claim, although inaccu man. rately worded, gave indication of an intention to claim also under the Workman's Compensation Act, and an amendment was allowed at the trial making that intention clear. The question, then, is whether the facts in this case enable the plaintiff to recover under sec. 3, sub-sec. 2, of the Act, by reason of the neglect of the foreman to give the plaintiff notice. It was not disputed that the machine was a dangerous machine, and if the plaintiff was acting within the scope of his employment while working the machine, I would entertain no doubt of his right to recover. But, as is clearly pointed out in the above case, the obligation can only arise from the duty of the employer, and this duty, again, arises out of the contractual relation and is governed by it. It is obvious there can be no duty cast upon the defendants to give warning in regard to the working of a machine which the plaintiff was not expected to work, and in meddling with which the plaintiff was a mere volunteer, if not a trespasser. Sir Gorell Barnes, President, in Young v. Hoffman Manufacturing Co., observes: "If a servant enters into the employment of a master, his rights must depend upon the terms of the contract between them, and, as in most cases nothing is said but to fix the wages and work to be done, the rest of the terms must be implied terms," and, after referring to Lord Bowen's judgment in The Moorcock (1889), 14 P.D. 64, at p. 68, as to the principle upon which the implied terms in a contract are to be gathered, he quotes a passage from the judgment of Shaw, C.J., in Farwell v. Boston and Worcester Railroad Corporation (1842), 4 Met. 49 (also to be found in 3 Macq. 316), as the most complete exposition of what constitutes common employment, and seems to be the source of the later decisions, and proceeds to quote as follows: "The claim, therefore, is placed, and must be maintained, if maintained at all, on the ground of contract. As there is no express contract between the parties applicable to this point, it is placed on the footing of an implied contract of indemnity, arising out of the relation of master and servant." The master, in the case supposed, is not exempt from liability because the servant has better means for providing for his safety, when he is employed in immediate connection with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the 2-VOL. XVI, O.L.B. D. C. 1907 LAWSON v. PACKARD ELECTRIC Co., LTD. Clute, J. D. C. 1907 LAWSON V. PACKARD ELECTRIC Co., LTD. Clute, J. negligence of anyone but himself, and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied.'' It was held by the Court of Appeal, in Thomas v. Quartermaine, 18 Q.B.D. 685, that the defence arising from the maxim volenti non fit injuria had not been affected by the Employers' Liability Act, 1880, the section of which corresponds to the section under consideration. In that case the plaintiff was employed in a cooling room in the defendant's brewery. In the room were a boiling vat and a cooling vat, and between them ran a passage, which was in part only three feet wide. The cooling vat had a rim raised sixteen inches above the level of the passage, but it was not fenced or railed in. The plaintiff went along this passage to pull a board from under the boiling vat. This board stuck fast and then came away suddenly, so that he fell back into the cooling vat and was scalded. It was held that there was no evidence arising from a breach of duty on the part of the defendants towards the plaintiff, and that the plaintiff was not entitled to recover. Bowen, L.J., at p. 694, says: "In order to answer the first inquiry, whether the defendant had been guilty of negligence, the first step to be taken must be to consider what is the duty towards. the plaintiff that it is alleged the defendant has broken, for the ideas of negligence and duty are strictly correlative, and there is no such thing as negligence in the abstract; negligence is simply neglect of some care which we are bound by law to exercise towards somebody. The common law imposes on the occupier of premises no abstract obligation at all as to the state in which he is to keep them, provided that he carries on no unlawful business and is guilty of no nuisance. In the case of premises that contain an element of danger, a duty arises as soon as there is a probability that people will go upon them, but it is a duty towards such people as actually do go. It is not a duty in the air, but a duty towards particular people. The occupier is bound to use all reasonable care to prevent such persons from being hurt. It is obvious that this duty must vary according to the character of the danger and the circumstances under which the premises are to be visited." The plaintiff, in short, must shew the existence of a duty on the part of the defendants, and that the plaintiff suffered as a direct consequence of the breach of such duty: Roberts and Wallace on Employers, 3rd ed., p. 22, and cases there cited. The Act does not give a new cause of action; it simply provides that, where the section applies, the person injured shall have the same right of compensation and redress against the employer as if he had not been a workman of nor in the service of the employer, nor engaged in his work. What, then, is the plaintiff's position? He is not entitled to recover at common law because the injury arose from the negligence of a fellow workman. The Act removes the defence of common employment. The plaintiff still has to shew that, having regard to what he was called upon to do, the defendants were guilty of some breach of duty. If he was not called upon to work this machine, I can find no duty cast upon the defendants to warn him against the danger in working it. He saw fit to meddle with that with which he had no concern. The machine was perfectly safe, unless it was set in motion. The plaintiff, in my view, had no business to set it in motion, and has no right to look to the defendants for recovery which resulted from his own wrongful act. He was a volunteer, in so far as he assumed to act without authority in running the machine, and in that respect he was in no better position than a stranger, who, having business upon the premises, but out of sheer curiosity, might see fit to start the machine. He would do it at his own risk. One who avails himself of a mere license to enter upon premises imposes upon the owner no duty to have them in a safe condition: Broom's Legal Maxims, p. 270; Gautret v. Egerton (1867), L.R. 2 C.P. 371. The plaintiff's In the present case there was not even a license. act was wholly unauthorized, and, so far as this machine is concerned, he was a mere volunteer. In Moore v. Moore, 4 O.L.R. 167, the jury found that the cause of the accident was the negligence of the defendants in not having the machinery properly guarded, and it was there held that the provision in the Factories Act was for the protection not only of those operating such machinery, but also those whose business brings them in proximity to such machinery. The Factories Act having no application to the present case, that decision does not, in my judgment, apply. D. C. 1907 LAWSON บ. PACKARD ELECTRIC Co., LTD. Clute, J. D. C. 1907 LAWSON v. PACKARD Clute, J. In Grizzle v. Frost, 3 F. & F. 622, as pointed out by Cockburn, C.J., there was evidence both of negative and positive negligence on the part of the foreman. Negative in not giving the girl proper instructions as to the use of the machine; positive in expressly directing her to do the very thing which she did, and which it was admitted was dangerous, so dangerous, indeed, that the case for the defence was that she had been told not to do it. The Chief Justice then proceeds: "Now, if either of those grounds of negligence are sustained, the defendants would be liable." In the present case it is the absence of evidence of that kind that leads me to the conclusion that I have reached. The observations of Mr. Justice Wills, in Robinson v. Smith & Son, 17 Times L.R. 235, is more in favour of the plaintiff than any other case I have read. But he pointed out in that case that there was evidence that the defendants' business was not carried on in a proper way, having regard to the class of persons in their employment, and he, therefore, thought the case ought to go to trial. In that case the plaintiff was injured while discharging his duty for which he was employed. The bookstall was on the platform, surrounded by lines of railway, there being foot-bridges across the line. He was not warned not to cross the track, and so received the injury complained of. It appears to me that the above case is clearly distinguishable from the present, in that the plaintiff in that case received the injury while discharging his duty within the direct line of his employment. True, he should have taken the overhead bridge, but he was not told to do so. There was evidence, therefore, on the part of the employer to go to the jury, the employment being a dangerous one, in regard to which a duty was thrown upon the defendants of taking special care. In Crocker v. Banks, 4 Times L.R. 324, the plaintiff was also doing the work for which she was employed, namely, filling soda water bottles. As pointed out by the Master of the Rolls, it was clear that during the process there was danger of the bottle bursting; the fact that the defendant provided masks was strong evidence that he knew of the danger, and, "having regard to the tender age of the person employed, the jury were justified in thinking that it was not sufficient for defendant to provide the |