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known or expected to have been involved in the service which he undertakes,”—a test which, looking at the authorities, is scarcely comprehensive enough (d).
In Charles v. Taylor (e)—which involved the question whether one of a gang of “lumpers” or men engaged in unloading coal barges for the defendants, who were brewers, and servants of the defendants engaged in moving barrels, were fellow servants—the Common Pleas Division held that they were such ; and Lord Justice Brett suggested the following
; formula: “When the two servants are servants of the same master, and where the service of each will bring them so far to work in the same place and the same time that the negligence of one in what he is doing as part of the work which he is bound to do may injure the other whilst doing the work which he is bound to do, the master is not liable to the scrvant for the negligence of the other." These formulæ seem to show that the test is whether or not the negligence of a fellow servant is a risk which may reasonably be expected to be incidental to the employment.
(2). A second class of cases consists of those in which persons are in one respect the servants of different masters, and yet for some purpose are regarded as if they were the servants of the same master. No doubt it is laid down that to exempt a master there must not only be a common service or employment, but also a common master. When a signalman engaged and paid by one company and wearing their uniform, but bound to attend also to the trains of another company, was killed by the negligence of an engine-driver in the service of the latter, it was held that they were not in a common employment ($). But the Courts have in some cases recognised the fact that a man may be, in a certain sense,
(d) The principle is thus stated by Blackburn, J., Morgan v. Vale of Neath Ry. Co., 5 B. & S. 580 : “I think that, whenever the employment is such as necessarily to bring the person accepting it into contact with the traffic of the line of a railway, risk of injury from the carelessness of
those managing that traffic is one of the risks necessarily and naturally incident to such an employment, and within the rule."
(e) (1868), 3 C. P. D. 496.
(f) Swainson v. North-Eastern Ry. Co. (1878), L. R. 3 Ex. D. 341.
the servant of two masters, and they have treated as fellowservants persons who, in one point of view, were not such, but were subject to different masters.
The first of these cases is Wiggett v. Fox (9), the facts of which were as follows: The defendants, who had contracted with the Crystal Palace Co. to erect a tower, made a subcontract with M. and four other persons to do by piece particular portions of the work. The workmen of the sub-contractors were paid weekly by the defendants according to the time which they worked. The sub-contractors received from the defendant's foreman directions as to the execution of the piecework. The persons who contracted with the defendants to do piecework, signed printed regulations by which they were not at liberty to leave their employment until after they had completed their piecework, and had given a week's notice. While W., who was employed by M., one of the sub-contractors, was at work, a workman in the service of the defendants let fall a tool, which killed W. The jury found that W. was the servant of M. The Court of Exchequer held that the defendants were not liable, the deceased and the workman whose negligence caused the accident being common servants of the defendants. “Here both the servants were, at the time of the injury,” said Alderson, B., “engaged in doing the common work of the contractors, the defendants; and we think that the sub-contractor and all his servants must be considered as being, for this purpose, the servants of the defendants whilst engaged in doing work, each devoting his attention to the work necessary for the completion of the whole, and working together for that purpose.” In this connection may be mentioned Murray v. Currie (1). The defendant had entrusted the unloading of a vessel to a master stevedore ; the plaintiff,
(g) (1856), 11 Ex. 832 ; 25 L. J. Ex. 188 ; 2 Jur. N. S. 855. This decision was questioned by Cockburn, C.J., in Rourke v. White Moss Co. ; and see remarks by Channell, B., in Abraham v. Reynolds.
(W) (1870), L. R. 6 C. P. 24. This
case turns, not so much on the doctrine of common employment as on the fact that Davis was not acting as defendant's servant ; and it was not necessary to decide that the plaintiff and Davis were fellow servants.
a dock labourer, was employed by the stevedore and engaged with Davis, one of the crew of the ship, in unloading, by means of one of the winches of the vessel.
The plaintiff was injured through the negligence of Davis in working the winch. Davis was paid by the defendants, but his wages were deducted from the stevedore's bills. All the unloading was under the control of the stevedore and his foreman. The stevedore provided the labour, and he would have had to get labour elsewhere if the ship had not found men.
The shipowner selected such members of the crew as were to be employed in unloading, but the stevedore selected the work for them, and had control over them. The Court thought that the defendants were not liable, on the ground that Davis was not doing the work, and was not under the control, of the defendant. “The question here is,” said Willes, J., " whether
* Davis, who caused the mischief, was employed at the time in doing Kennedy's work or the shipowner's. It is possible that he might have been the servant of both, but the facts bere seem to negative that. The rule, out of which this case forms an exception, that a servant or workman has no remedy against his employer, for an injury sustained in his employ through the negligence of a fellow-servant or workman, is subordinate to another rule, and does not come into operation until a preliminary condition be fulfilled : it must be shown that if the injury had been done to a stranger, he would have had a remedy against the person who employed the wrongdoer
It was Kennedy's work he was employed upon, and under Kennedy's control.”
"I apprehend it to be a true rule of law," said Brett, J. " that if I lend my servant to a contractor, who is to have the sole control and superintendence of the work contracted for, the independent contractor is alone liable for any wrongful act done by the person while so employed. The servant is doing, not my work, but the work of the independent contractor.” Rourke v. White Moss Co. (i) ought here
(1? (1876), L. R. 1 C. P. D. 556 ; (1877), L. R. 2 C. P. D. 205. See
to be noticed. The defendants, owners of a colliery, were engaged in sinking a shaft, and for that purpose bad employed among other workmen the plaintiff. After they had carried on the work for some time, they entered into a contract with one Whittle, to complete the sinking. Whittle was to provide all the labour, and the company were to put at the disposal of Whittle the necessary engine and to pay the engineer's wages. Lawrence, the engineer, was employed by the defendants and paid by them. Owing to his haviny fallen asleep and not stopped the engine at the proper time, the plaintiff was severely injured. Both the Common Pleas and the Court of Appeal thought that the plaintiff could not recover.
In the former the decision was placed by Coleridge, C. J., Archibald, J., and Lindley, J., on the ground that both the plaintiff and Lawrence were the servants of Whittle. “He (Lawrence),” said Coleridge, C. J., “was originally, and may be now, in the employment of the defendants ; but the work he had to do at the time of the accident was a necessary part of the work to be done under Whittle's contract. He was at that time working under the direction of Whittle, the working of the engine being a part of one operation, the whole of which was being done by Whittle. The plaintiff therefore was clearly the servant of Whittle, and Lawrence also was in one sense the servant of Whittle, inasmuch as he was working under his orders, and subject to his control, although his wages were paid by the defendants.” “The real question," said Archibald, J., " is whether Lawrence was in the service of Whittle or in that of the defendant. For this purpose, I think he was in the service of Whittle." Cockburn, C. J. put his decision on the same grounds. But the judgments of
also Murphey v. Carolli (1864), 3 H. & C. 462 ; 34 L. J. Ex. 14 ; K'imball v. Cushman, 103 Mass. 194. (Defendant boarded with his father-inlaw; his brother-in-law took care of the defendant's horses and carriage, and occasionally drove them; the
brother-in-law, while riding to see about some hay which he had ordered for the defendant, injured the plaintiff ; defendant liable on the ground that the brother-in-law was engaged in his business with his assent.)
Mellish, L. J. and Baggally, J. A., seem to go no further than deciding that at the time of the accident Lawrence was not acting as the servant of the defendants; and it is submitted that the case does not decide that the plaintiff was the fellowservant of Lawrence. In his judgment Mellish, L. J., observes, " that the effect of this agreement was that the whole job was lent out to Whittle, but the engine was to assist him in doing the work, and the engineer, though remaining the general servant of the defendants and paid by them, was while working at this sbaft, to act under the control and orders of Whittle. That, in my opinion, makes the acts of Lawrence, while working the engine, the acts of Whittle and not of the defendants. Lawrence's duty, according to the orders of Whittle, was to have stopped his engine at the proper time, and not doing this, he was negligent in not obeying the orders of Whittle, and this in law amounted to the negligent act of Whittle. It follows, therefore, that the defendants are not liable ; and it is unnecessary to consider whether the plaintiff was the fellow-servant of Lawrence in Whittle's employ." Baggallay, J. A., thought the defendants not liable on the same ground, namely, that Lawrence was acting as servant to the contractor, and did not express any opinion upon the question of common employment.
Parallel, however, with these decisions, runs another series of cases, some of which may not be reconcileable with the above. The first one is Abraham v. Reynolds (le), decided in 1860 by the Court of Exchequer. The plaintiff, a servant of J. & Son, went to defendant's warehouse to fetch cotton for defendants, whose cotton was always carted by J. & Son. The bales were lowered by defendants' men into a lorry, and by the negligence of one of the defendants' men a bale fell and hurt the plaintiff. The Court thought the defence of common employment not open to the defendants because (according to Pollock, C. B.), though the workmen had a common object they had separate ends and for some purposes antagonistic
(k) (1860), 5 H. & N. 143. See also Coombes v. Houghton, 102 Mass. 211.