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CHAPTER XXIX.

MASTER'S LIABILITY TO SERVANTS.

A MASTER is not liable at Common Law to his servants for the acts of fellow servants in the course of their employment.

This has been altered by the Employers' Liability Act of 1880, which is printed in the second part of this volume. But as the Common Law is still partly in force, it will be advisable to state what it was before the passing of that Act. The reasons assigned for the exemption above stated are very various. Sometimes it is put on the ground of general policy, and on the inexpediency of exposing a master to a multiplicity of actions (a). Sometimes the reason assigned is that a servant does, as an implied part of the contract between himself and his master, take upon himself the natural risks and perils incident to the performance of his services (b); or it is said that the liability of the master for the acts of the servant is an exception which ought not to be extended, and that the servant has no cause of action against his fellow servant because, " he has not stipulated for a right of action against his master if he sustains damage from the negligence of a fellow servant" (c). Perhaps the most generally accepted reason is that stated by Shaw, J., in Farwell v. Boston Railroad Co. (d). "The implied contract of the master does

(a) Priestley v. Fowler (1837), 3 M. & W. 1.

(b) Morgan v. Vale of Neath Ry. Co., 33 L. J. Q. B. 260; 5 B. & S. 570; L. R. 1 Q. B. 149.

(c) Bramwell, B., in Swainson v. the North-Eastern Ry. Co. (1878), L. R. 3 Ex. D. 341; 47 L. J. Ex. 372; 38 L. T. 201; 26 W. R. 413. (d) 4 Met. (Mass.) 49.

not extend to indemnify the servant against the 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."

Whatever be the true reason, it has been undisputed law since the decision of the Exchequer Court in Priestley v. Fowler in 1837 (e), that a master is not answerable to one servant for the conduct of another in the same common employment. How far this has been altered by legislation. will be subsequently explained; for the present I state the Common Law. "The principle is," said Alderson, B., in Hutchinson v. York, Newcastle & Berwick Railway Co. (f), "that a servant, when he engages to serve a master, undertakes as between himself and his master, to run all the ordinary risks of the service; and this includes the risk of negligence upon the part of a fellow servant, whenever he is acting in the discharge of his duty as servant of him who is the common master of both."

It matters not that the work is dangerous if the dangers be incidental to the employment. No one is bound to enter or continue in employment in which he runs serious risk, and if he does, he must take things as he finds them (g).

The master is not the insurer of those whom he employs. He does not warrant the competency and care of his

(e) 3 M. & W. 1.

(f) (1850), 5 Ex. 352.

(g) See Wigmore v. Jay (1850), 5 Ex. 354; 19 L. J. Ex. 300. (Action by the administratrix of Wigmore under 9 & 10 Vict. c. 93;

the deceased, a workman in the employment of the defendant, a master builder, had been killed by the fall of a scaffold, constructed under superintendence of defendant's foreman, who used an unsound pole; action.) Seymour v.

no cause

of

Maddox (1851), 16 Q. B. 326; 20 L.

J. Q. B.

singer against defendant, owner of a 327. (Action by a chorus theatre; the plaintiff fell through a

hole in the floor, owing to the want of light and fencing; no breach of duty shown.) This case is open to doubt. Skipp v. Eastern Counties Ry. Co. (1853), 9 Ex. 223. (A guard injured evidence that the work was too much for the staff of the company; the servant had for several months acted as a guard, and had made no complaint; no liability.) Couch v. Steel (1854), 3 E. & B. 402; 23 L. J. Q. B. 121. (No implied obligation on the part of the owner of a ship towards a seaman that the ship shall be in a fit state to perform the voyage.) See, however, 39 & 40 Vict. c. 80, s. 5.

servant (h), though he will expose himself to an action if he employs those whose incompetency is known to him (i). The carelessness of a servant in the course of his duties which results in the injury of another gives no cause of action against their common employer. A licensed waterman and lighterman in the employment of a corn merchant is injured by the fall of a sack owing to the carelessness of one of the corn merchant's men in hoisting it (l); a miner is killed by the carelessness of an engineer who does not stop a cage when it emerges from the pit, but allows it to be drawn up to the scaffold (l); a workman engaged in erecting scaffolding falls, and is injured owing to the negligence of the foreman, who did not supply sufficient boards (m); a man employed in carpenter's work for a railway company is injured by the negligence of porters who shift an engine so that it strikes the scaffold on which he stands (n). In all these cases the injured persons or their representatives have at Common Law no redress against the employers on the ground that the negligence is that of fellow servants.

The servant whose negligence or misconduct is the cause of the injury may be the superior of the person injured, and the latter may be bound to obey his orders. He is not the less a fellow servant. "A merchant's clerk, though (as is frequently the case) the equal of his employer in social position, is, in the eye of the law, a fellow servant with the boy who sweeps out the store and lights the fire (o)."

In Wilson v. Merry (p) it was held to make no difference that the accident to men sinking a shaft arose from the

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negligence of a manager. When a third engineer, while turning a winch under the orders of the first, was injured by one of the handles coming off, the owners were not liable, though the handle came off in consequence of the negligence of the chief engineer in leaving the machinery in a defective state (q). [But see the Employers' Liability Act, secs. 2 and 3.] The Courts have given a very wide signification to fellow servants. Two classes of cases must be distinguished: (1) The first consists of cases in which two persons are undoubtedly in the service of the same master; and the only question is whether they are engaged in common duties or so employed as to bring them within the rule. No authority goes so far as to say that the principle holds good between all servants employed by the same master. If a man owned a farm in the country and a warehouse in town, and if one of his farm servants happened to be injured by the negligence of a servant engaged in the warehouse, no one would say that the master would be freed from liability (). A sailor on one ship would not be regarded as the fellow servant of a sailor on another, though both ships belonged to the same owner.

(9) Searle v. Lindsay (1861), 11 C. B. N. S. 429; 8 Jur. N. S. 746; 31 L. J. C. P. 106; 10 W. R. 89; 5 L. T. N. S. 427; also Willes, J., in Gallagher v. Piper; Howell v. Landore Steel Co. (1874), 10 L. R. Q. B. 62; 44 L. J. Q. B. 25; 23 W. R. 335.

(r) See Blackburn, J., in Morgan v. Vale of Neath Ry. Co., 33 L. J. Q. B. 260; 5 B. & S. 570; L. R. 1 Q. B. 149; and Pollock, C.B., in Abraham v. Reynolds (1866), 5 H. & N. 143; Shearman and Redfield on Negligence, s. 101. The exemption does not extend to cases where the servant, at the time of the injury, is not acting in the service of his master. See Alderson, B., in Hutchinson v. The York, Newcastle, & Berwick Ry. Co., 5 Ex. 343; 19 L. J. Ex. 296; the master is liable if the injury be due to a risk not incident to the service, Mansfield v. Baddeley (1876), 34 L. T.

696 (dressmaker bitten by a savage dog); or if the injury result from the master's negligence; Warren v. Wildee (1872), W. N. 87 (explosion of gas). But the above exemption exists in the event of the servant being injured while returning from work, if it be part of the contract that he is to be conveyed back, as in Tunney v. Midland Ry. Co. (1866), L. R. 1 (C. P. 291. See as to this, Lord Brougham in Brydon v. Stewart (1852), 2 Macq. 30; also Packet Co. v. M'Cue (1873), 17 Wall, U. S. 508. (A. hired to assist in loading a boat belonging to defendant, but not in the general employment of defend

ant.

After the job was over, and he was paid, he was crossing a gangway to go ashore, and was injured by the negligence of defendant's servants: a question for the jury whether the relation of master and servant had ceased at the time of the injury.)

But it is not necessary that servants should be doing the same or similar acts in order to come within the rule. "The driver and the guard of a stage coach, the steersman and the rowers of a boat," said Lord Cranworth in Bartonshill Coal Co. v. Reid (8), "the workman who draws the red-hot iron from the forge and those who hammer it into shape, the engine man who conducts a train, and the man who regulates the switches or the signals, are all engaged in common work" (t). The duties of two servants may have little connection, and may rarely bring them together. They may be of different grades; they may belong to different departments of the same factory, workshop, or establishment; their occupations may lie far apart (u); and they may be scarcely aware of each other's existence. They may be not the less fellow servants. An engineman who controlled the motions of a cage by which a miner was drawn to the surface was held to be a fellow servant of a miner engaged below (x). Carpenters employed by a railway company to do carpenter's work and porters engaged in shifting a locomotive (y); a miner and the underlooker of a mine (z); a workman and a certificated manager of a colliery appointed under sec. 26 of the Coal Mines Regulation Act, the 35 & 36 Vict. c. 76 (a); a labourer employed by a railway company in loading waggons with ballast and the guard of a train by which he was returning after doing his work (b), have been held to be fellow servants in such a sense that an injury committed to the one by the negligence of the other did not make the master answerable.

Lord Chelmsford, in Bartonshill Coal Co. v. McGuire (c), suggested that in general a satisfactory conclusion could be arrived at "by keeping in view what the servant must have

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Ry. Co. (1858), 8 Ir. C. L. 312.

(z) Hall v. Johnson (1865), 3 H. & C. 589.

(a) Howell v. Landore Steel Co. (1874), L. R. 10 Q. B. 62; 44 L. J. Q. B. 25: 23 W. R. 335.

(b) Tunney v. Midland Ry. Co. (1866), L. R. 1 C. P. 291; 12Jur. 691. (c) (1858), 3 Macq. 308.

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