active or passive, a misfeasance or a negligent omission (). In the second of the two cases referred to, Lord Esher, M. R., says a passenger "might allege a contract by the railway company to carry him with reasonable care and skill, and a breach of that contract; and, on the other hand, he might allege that he was being carried by the railway company to the knowledge of their servants, who were bound not to injure him by any negligence on their part, and if they were negligent, that was a matter on which an action of tort could be brought. At the present time a plaintiff may frame his pleadings in either way, but he is not bound by his pleadings, and if he puts his claim on one ground and proves it on another, he is not now embarrassed by any rules as to departure. The question to be tried is the same in either case. The plaintiff must rely on and prove negligence, and whether that negligence is active or passive seems to me to be immaterial."

Before dismissing finally the question of negligence, it may be shortly stated that every man is liable for the acts of his servant or agent while acting within the scope and in the course of his employment; in other words, "Qui facit per alium facit per se" (m). But the onus is upon the person injured to show that the injury is due to the negligence of the servant acting within the scope of his authority. Thus, where an omnibus makes a détour for some reason on its way to the place from which it should start on its journey, and is driven on such détour by the conductor and not by the driver, the conductor is not acting within the scope of his authority, so as to render his employer liable for the results of his negligence whilst so driving (n).

If the original negligence of a servant is an effective cause of the damage complained of, then there is no rule of law to protect the master from liability for the negligence of his servant where the damage is immediately produced by the negligent or wrongful act of a third person, to whom an opportunity has been given by such servant. The real test

(1) Taylor v. M. S. & L. Rail. Co., (1895) 1 Q. B. 134; 64 L. J. Q. B. 6 ; Kelly v. Metropolitan Rail. Co., (1895) 1 Q. B. 944; 64 L. J. Q. B. 568. (m) The Bernina, 12 P. D. at p. 63. And see Storey v. Ashton, L. R. 4 Q. B. 476; 38 L. J. Q. B. 223.

(n) Beard v. London General Omnibus Co. (C. A.), (1900) 2 K. B. 530; 69 L. J. K. B. 895; 83 L. T. 362. And compare Bayley v. M. S. & L. Railway, L. R. 8 C. P. 148; 42 L. J. C. P. 78; Dyer v. Munday, (1895) 1 Q. B. 742; 64 L. J. Q. B. 448; and Seymour v. Greenwood, 30 L. J. Ex. 189; and on appeal at p. 327.

in such a case is, whether the original negligence of the servant is an effective cause of the damage complained of; this is a question of fact only (0).

For full details of the law relating to the responsibility of a master for his servant's negligence, the practitioner is referred to the text-books upon the subject. There are, however, in connection with this last topic, recent decisions, with regard to the liabilities of owners of hackney cabs and also ordinary locomotives, which should be referred to. It will be remembered, that in discussing the latter part of sect. 1 of the Light Locomotives Act, 1896, reference was made to the statutes relating to hackney carriages, and that under certain statutes (especially 6 & 7 Vict. c. 86) the proprietor is made liable, both civilly and penally, for certain defaults of the driver.

In the case of hackney carriages or cabs, it has frequently occurred, that when an accident has happened the registered proprietor has attempted to escape liability to make compensation by setting up the defence that the driver was not a servant of his. Thus, in the year 1881, in King v. Spurr (p), it was held, that there was nothing in the provisions of the Metropolitan Hackney Carriage Acts (1 & 2 Will. 4, c. 22, and 6 & 7 Vict. c. 86) to make the defendant-proprietor liable for the negligence of the driver, who hired the cab from the proprietor for a weekly payment, the driver finding the horse, while the proprietor simply received the weekly payment for the use of the cab. The Court in that case appeared to have considered the position of the proprietor and driver to have been that of bailor and bailee, and not that of master and servant (9). In 1889, however, the question was raised again in the case of King v. London Improved Cab Co., Ltd. (r), which was argued in the Court of Appeal. In this case the facts were as follows:-The plaintiff brought an action to recover damages for personal injuries sustained by him owing to the negligence of a man, alleged to be a servant of the defendants, while driving a cab belonging to them; and the jury found both these facts in favour of the plaintiff. It was

(o) Englehart v. Farrant & Co., (1897) 1 Q. B. 240. See M'Dowall v. Rail. Co. (C. A.), (1903) 2 K. B. 331.

G. W.

(p) 8 Q. B. D. 104; 51 L. J. Q. B. 105. See also Brady v. Giles, 1 Mood. & Rob. 494; 42 R. R. 816. See infra.

(9) See Venables v. Smith, 2 Q. B. D. 279; Hider, 6 E. & B. 207; 25 L. J. Q. B. 331.

(r) 23 Q. B. D. 281; 58 L. J. Q. B. 456. approved.

46 L. J. Q. B. 70; Powles v.

Venables v. Smith,

supra, was

urged by the defendants that the driver was not a servant, the terms on which he drove the cab being that he should pay a certain sum daily for the use of the horse and cab, and that he should retain any surplus earnings, but that the engagement should be a daily one only, without necessity for any notice to terminate it on either side. It was held that, on the construction of the Metropolitan Hackney Carriage Act, 1843 (s), it was a necessary implication from the various sections that the Act was made in favour of the public irrespective of the agreement that might subsist between the proprietor and the driver, and that the public were entitled, whether as between the proprietor and the driver the relationship of master and servant exists or not, to say that the relationship must be deemed to exist. This question was settled finally in the case of Keen v. Henry (t), in which the law is thus stated (u) :— "If the driver had been the servant of the defendant, his negligence would, at common law, have given the plaintiff a right of action against the driver's master in the ordinary sense of that word. But under the Act he is entitled also to bring an action against the registered proprietor of the cab. The proprietors of hackney carriages cannot, by letting their carriages, escape from their liability under the statute." It was then definitely stated that King v. Spurr (v) had been overruled by the case of King v. The London Improved Cab Co. (x). A part proprietor of a cab, not registered in the register of licences as the proprietor, is equally liable, for the negligence of his driver, with his partner who is registered (4).

A somewhat similar point has been decided also in the case of traction engines, which are subject to the Locomotives Acts, being let out to hire. In the case of Smith and Wife v. Bailey and Another (s), the plaintiff having been injured while driving in a carriage upon the highway, owing to the negligent management of a traction engine upon the highway by the hirer of it, brought an action to recover compensation against the owner of the engine, upon which his name and address were painted or affixed as required by the Locomo

6 & 7 Vict. c. 86.

(t) (1894) 1 Q. B. 292; 63 L. J. Q. B. 211. See also Gates v. Bill, infra. Page 99, supra.

8 Q. B. D. 104.

(x) 23 Q. B. D. 281.

(y) Gates v. Bill, (1902) 2 K. B. 38; 71 L. J. K. B. 702; 87 L. T. 288. (*) (1891) 2 Q. B. 403; 60 L. J. Q. B. 779. See also Stables v. Eley, 1 C. & P. 614.

tives Act, 1865 (a). It was argued on the part of the plaintiffs that the legislation with regard to locomotives on highways was analogous to that with regard to hackney carriages, and the case of King v. London Improved Cab Co. was relied upon. The Court of Appeal, however, decided that the construction placed upon the Hackney Carriage Acts was no authority for the construction of the Locomotives Act, and that there was nothing in the Locomotives Act to show that the Legislature intended that, if a traction engine was let out and negligently used by the hirer, the owner was to be liable to compensate any person injured by the hirer's negligence.

The general principle with regard to the hirer's liability for the negligence of the driver of a carriage, is that if the hirer simply applies to the livery stable-keeper to drive him between certain points or for a certain period of time, and the latter supplies all that is necessary for that purpose, the hirer is in no sense responsible for any negligence on the part of a driver (b). Thus, in Laugher v. Pointer (c), where the owner of a carriage hired of a stable-keeper a pair of horses to draw it for a day, and the owner of the horses provided a driver, through whose negligent driving an injury was done to a horse belonging to a third person, it was held that the owner of the carriage was not liable to be sued for such injury (d). But in Jones v. Scullard (e), the defendant was the owner not only of a brougham, but also of the horses and harness, which he kept at a livery stable. The keeper of the latter was in the habit of supplying the defendant with one of his own servants to drive the brougham. One day, whilst the brougham was being driven with one of the defendant's horses, the driver, owing to his negligence, as the jury found, lost control of the horse, which dashed through the window of the plaintiff's shop and did damage. The man who was driving the brougham at the time of the accident had continuously driven the defendant for the preceding six weeks, and at the time of the accident was wearing a suit of livery which had been supplied to him by the defendant. Upon these facts, it was held that there was evidence on which a jury might find that the driver at the time of the accident was

(a) 28 & 29 Vict. c. 83, s. 7.

(b) Jones v. Scullard, infra, per Lord Russell of Killowen, C. J.

5 B. & C. 547.

(d) See Brady v. Giles, 1 Mood. & Rob. 494; Quarman v. Burnett, 6 M. & W. 499; Waldock v. Winfield, (1901) 2 K. B. 596; Dean v. Braithwaite, 5 Esp. 35; Houghton's Case, 5 B. & C. 550.

(e) (1898) 2 Q. B. 565.

acting as the servant of the defendant, so as to render the defendant responsible for the consequences of his negligence.

There are two further classes of cases which require notice while dealing with the subject of negligence, but which do not need to be exhaustively dealt with in the present work; viz., actions by the representatives of deceased persons, where such persons have met their death owing to the negligence of the defendants; these are dealt with under a statute known as Lord Campbell's Act, 1846 (f). And secondly, actions by workmen against their employers, where the workman is injured in the course of his employment; these latter actions are brought under the provisions of the Employers' Liability Act, 1880 (g), and the Workmen's Compensation Acts, 1897 and 1900 (h).

Previously to Lord Campbell's Act it was held Actio personalis moritur cum persona, and that though a man injured through the negligence of another could maintain an action if he survived, yet in case of his death from the injuries his family had no remedy whatever. By this Act, which is entitled "An Act for compensating the families of persons killed by accidents," it is recited that, "Whereas no action at law is now maintainable against a person who by his wrongful act, neglect, or default may have caused the death of another person, &c." The Act then goes on to say that where, if death had not ensued, the party injured would have been entitled to recover damages, then in such case the person who would have been liable but for the death, shall be liable, notwithstanding the fact of the death of the person injured. Sect. 2 enacts that the action shall be for the benefit of the wife, husband, parent, or child of the deceased, and shall be brought by and in the name of the executor or administrator; and that the jury may give such damages as they may think proportioned to the injury resulting from the death to the parties for whose benefit the action may be brought, and that the amount so recovered shall be divided as the jury shall direct. By sect. 3 only one action shall lie in respect of the same subject-matter of complaint, and every action is to be commenced within twelve months from the death of the injured person. By sect. 4 full particulars are required to be given. Sect. 5 defines the meaning to be attached to the word "person," which is to include bodies