In

for the work; though if a servant were to continue in a workshop or factory with full knowledge of this deficiency, he would be taken to have accepted the risk. Saxton v. Hawksworth (e), the evidence was that five steam engines, some of them situated apart from each other, were attended to by only two men; one of the engines "ran away," or revolved too fast, and the plaintiff, who was a sheet roller in the defendants' works and had been such for three years, was thereby injured. The Exchequer Chamber held that, assuming the accident might have been prevented had more men been employed, he could not

recover.

If machinery or plant have defects which might have been discovered by reasonable care on a master's part, the master will be liable for injuries to his servants by reason of such defects.

The Employers' Liability Act (42 & 43 Vict. c. 42) has introduced an important change, but it is necessary to ascertain what is the Common Law. No part of the subject is more obscure than the precise nature and extent of the liabilities of masters in regard to defects of machinery and plant. A humane employer, anxious for the safety of his workmen, would be vigilant even if they were careless, and would seek to save them from perils which they were ready to face. The Common Law, however, does not require an employer to do this. The question was considered by the House of Lords in Paterson v. Wallace (f), which was decided in 1854. This was a claim by the widow and children of a miner, who had been accidentally killed by the fall of a stone

(e) (1872), 26 L. T. 851; Skipp v. Eastern Counties Ry. 'Co. (1853), 23 L. J. Ex. 23.

(f) Paterson's Scotch Appeals, i. 389; 1 Macq. 748.

while working in a coal pit as a servant of the defendant. The counsel for the pursuer at the trial asked the Lord Justice Clerk to state to the jury the law thus: "If S., the defendant's manager, failed in his duty in timeously directing the stone in question to be removed, it would afford no defence to the action that Paterson continued to work after the orders for the removal of the stone had been ultimately given; and that if Paterson so continued to work in consequence of the directions of the roadsmen, the defenders are responsible for such directions." The judge refused so to direct the jury, and the Court of Session disallowed the exception. An appeal to the House of Lords took place. Lord Cranworth thought it clear that the Court below was wrong in disallowing the exception. "The law of Scotland is admitted on all hands to be this-and I believe it to be entirely conformable to the law of England also-that where a master is employing a servant in a work, particularly work of a dangerous character, he is bound to take all reasonable precautions that there shall be no extraordinary danger incurred by the workman (in Macqueen's Reports 'he is bound to take all reasonable precautions for the safety of that workman,' that is, one employed in a work of a dangerous character). A case has been put by Mr. Bovill of a rope going down to a mine. I take it, that in England, just as in Scotland, if the master of a man negligently put a rope that is so defective that it will break with the weight of a man upon it, he is responsible to the workman, just as he would be responsible for his negligence to a stranger.

I believe, by the law of England, just as by the law of Scotland, in the actual state of the case with which we have to deal here, a master employing servants upon any work, particularly a dangerous work of this sort, is bound to take care that he does not induce them to work under the notion that they are working with good and sufficient tackle, whilst he is employing improper tackle." Having pointed out that "in England, in Scotland,

and in every civilised country, one who rushes into danger himself cannot say, 'That is owing to your negligence,'" the Lord Chancellor added, "the pursuers must here make out that the deceased came to his death owing to the stone in question having been improperly left to remain where it was, being dangerous to the persons who should work in the mine; secondly, that the party has come to his death in consequence of that negligence, and not by his own carelessness." The question in this case, it will be observed, was whether the servant had been culpably careless. In the following year the same subject was further considered in Brydon v. Stewart (g), which was an action for damages at the instance of the wife and children of a miner who was struck on the head while ascending a shaft in a cage by a lump of coal which fell from above. It was not denied that the master was responsible for the state of the lining of the shaft; the only defence was that the accident happened when the deceased had no lawful excuse for going up the pit. This was overruled; and the master was held liable.

The same question arose in 1861 in Weems v. Mathieson (h). A workman had been injured by the fall of a cylinder which had been suspended between three shear poles by means of a chain. Lord Campbell and Lord Wensleydale pointed out that the contract of hiring implied no warranty of the perfect character of the machinery; and the former was careful to say that to make the defendants liable it must be shown that the weakness in the glands or bolts used in hoisting the cylinder "did not arise from any inherent secret defect, and that it was known, or might by the exercise of due skill and attention have been known, to the defendant, who was the employer of the deceased." "I take it to be perfectly clear," said Lord Wensleydale, "that in these cases there is no warranty. All that the master is bound to do is to provide machinery fit and proper for the work, and to take care to

(g) 2 Macq. 30; 1 Pat. 447.

(h) 1 Pat. 1044; 4 Macq. 215.

have it superintended by himself or his workmen in a fit and proper manner." The same question had been discussed by the Courts of Common Law in Wigmore v. Jay (i), Roberts v. Smith (k), Ormond v. Holland (1), Williams v. Clough (m), and other cases collected in Appendix B. They established the principle that in order to support such an action, personal negligence must be brought home to the employer.

A master is plainly liable when, as in Williams v. Clough (n) and Roberts v. Smith (o), he supplies articles for use by his servants knowing them to be unsafe. Ignorance is not, however, always an excuse. A master is bound to use reasonable care, especially when the employment is a dangerous one, to provide good and sufficient tackle and machinery; and it will be a question for a jury looking to the whole facts to say whether he has failed in his duty. In Murphy v. Phillips (p) it was proved that the plaintiff, a stevedore in the defendant's service, was injured by reason of the breaking of a chain belonging to the defendant's ship. The chain was worn, it had been in use for seven years, and it had not been tested in the usual way during that time. The jury found that the chain was not in a fit state for the work; that the defendant did not know of the defects in the chain; but that he might have discovered them had he chosen to examine it.. In these circumstances, though he took no part in the work, he was held to be liable. "He might," said Cleasby, B., “have appointed a fit and competent person expressly to superintend and see to the examining and testing of the chain, and had he done so he would of course have been himself exempt from liability; or he might

(i) (1850), 5 Ex. 354; 19 L. J. 300.

(k) (1857), 2 H. & N. 213; 3 Jur. N. S. 469; 26 L. J. Ex. 319.

(1) (1858), E. B. & E. 102.

(m) (1858), 3 H. & N. 258; 27 L. J. Ex. 325.

(n) See note (m).

(0) See note (k).

(p) (1876), 35 L. T. 477; also

Holmes v. Clark (1862), 31 L. J. Ex. 356; Holmes v. Worthington (1861), 2 F. & F. 533. See, however, Dudley v. Brown, Law Times, June 25, 1881, p. 135, reversing the decision of Divisional Court. Some of the remarks in the judgments in Murphy v. Phillips appear to be not in accordance with other authorities.

Davies v.

have examined the state of the chain himself." England (q) is an instructive case on this subject. The defendant employed the plaintiff in cutting up carcases which the former, it was alleged, knew to be diseased, but which the latter did not. The servant was injured by the virus in the meat, and the defendant was answerable. In this case two counts which did not allege knowledge by the defendant were held bad.

These cases did not distinctly determine whether the obligation on the part of the master to take care might be delegated to others. This question came before the House of Lords in 1868 in Wilson v. Merry (r), and Lord Cairns thus answered it. "The result of an obligation on the master personally to execute the work connected with his business, in place of being beneficial, might be disastrous to his servants, for the master might be incompetent personally

the

(9) (1864), 33 L. J. Q. B. 321; Pollock v. Cassidy (1870), 8 M. 615. (Plaintiff, while engaged in removing stones from bottom of a pier, injured by the fall of embankment at the foot of which he was working, and which had not been sufficiently sloped ; the plaintiff not a skilled workman, acquainted with proper angle at which embankment should be sloped; defendant liable.) Metzger v. Hearn, N. Y. S. C., American Law Review, 485 (1881). (Master liable to servant for accident caused by overloading floors of his building.) Ochsenbein v. Shapley, N. Y. C. of Ap. (1881), American Law Review, 619. (Defendants directed their foreman to test a boiler under pressure of 150 lbs. He tested it up to 200 lbs. ; it burst, and injured the plaintiff and servant; defendants liable, even though the foreman's conduct was wanton and wilful.) At Common Law there is in a seaman's contract no implied warranty of seaworthiness as to a ship; see Couch v. Steel, 3 E. & B. 402, also Willes, J., in Gallagher v. Piper, 33 L. J. C. P. 331. This, however, is altered by the Merchant

66

Shipping Act of 1876, s. 5, which says: In every contract of service, express or implied, between the owner of a ship and the master, or any seaman thereof, and in every instrument of apprenticeship whereby any person is bound to serve as an apprentice on board any ship, there shall be implied, notwithstanding any agreement to the contrary, an obligation on the owner of the ship, that the owner of the ship and the master, and every agent charged with the loading of the ship, or the preparing thereof for sea, or the sending thereof to sea, shall use all reasonable means to insure the seaworthiness of the ship for the voyage at the time when the voyage commences, and to keep her in a seaworthy condition for the voyage during the same: Provided, that nothing in this section shall subject the owner of a ship to any liability by reason of the ship being sent to sea in an unseaworthy state where, owing to special circumstances, the so sending thereof to sea is reasonable and justifiable.")

(r) L. R. 1 S. & D. 326.