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to perform the work. At all events, a servant may choose for himself between serving a master who does, and a master who does not attend in person to his business. But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so,

and to furnish them with adequate materials and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do, and if the persons so selected are guilty of negligence, this is not the negligence of the master; and if an accident occurs to a workman to-day, in consequence of the negligence of another workman, skilful and competent, who was formerly, but is no longer, in the employment of the master, the master is, in my opinion, not liable, although the two workmen cannot technically be described as fellow-workmen."

What, it may be asked, is the position of corporations which always act by servants ? A railway company provides old and defective engines; its rolling stock is not renewed, or cheap and inferior plant is purchased ; one of its servants is injured in consequence of the defective state of the plant. Is the company liable? The negligence, it may be said, is, in fact, the negligence of a fellow-servant, in respect of which the injured person has no remedy. On the other hand, it may be urged that if there be no redress, corporations which act by servants enjoy an exemption not possessed by persons who personally carry on their own business. This point arose in Allen v. New Gas Co. (s). The plaintiff, a servant of the defendants, was injured by the fall of certain gates on the defendants' premises. The gates had for some time been out of repair, and the attention of the defendants' manager, Farren, had been called to them, and he had promised to repair them. “The gates,” said the Court, “were dangerous when shut, pot dangerous when against the wall and wedged up. Now, either some workmen as such moved the gates, or the wind

(s) (1876), L. R. 1 Ex. D. 251 ; 45 L. J. Ex. 668; 34 L. T. 541.

did so, and then the workmen ought to have replaced them. It was, therefore, by the improper moving of the gates by a workman, or by their being left improperly open by the workmen, that the mischief happened. “But assuming it to have been the negligence of Farren, his negligence would, as before pointed out, be that of a fellow-servant, for which, according to the cases cited, the defendants would not be liable" (t).

Some American Courts have arrived at a different conclusion, and have decided that the knowledge of a servant, whose duty it is to make reports as to the state of machinery or plant, is the knowledge of the company. The rule is sometimes thus stated :-" The master cannot be held charge. able for any act of negligence on the part of the superior servant except in so far as such servant is charged with the performance of the master's duty to the servant" (u). The point came before the Supreme Court of the United States in Hough v. Texas & Pacific Railway Co. (cc), in which the facts were these :- An engine-driver was killed in consequence of an engine being thrown off the track. This accident was due to defects in the cow-catcher ; defects due to the negligence of the company's master mechanic, who had full control over the engines, and who knew of the defects, and had promised they should be repaired. His competence was unquestionable, and it was urged that there was no liability, inasmuch as he was a fellow-servant of the deceased. The

() With the reasoning at p. 255 compare Murphy v. Philips. The fact is that the authorities are not at one as to this. Some judges seem to assume that a master cannot delegate his duty, to keep machinery, plant, &c., in a state of repair, “in the condition in which, from the terms of the contract, or the nature of the employment, the servant has a right expect

that it would be kept ; Cockburn, C.J., in Clarke v. Holmes, 7 H. & N. 944. “Why,” asks Byles, J., in the same case, “may not the master be guilty of negli

gence by his manager, or agent, whose employment may be so distinct from that of the injured servant, that they cannot with propriety be deemed fellow-servants? And if a master's personal knowledge of defects in his machinery be neces. sary to his liability, the more a master neglects his business and abandons it to others, the less will he be liable.”

(u) Wood's Master and Servant, 886.

(a) (1879), 10 Otto, 213.


Supreme Court, however, overruled this defence, observing, "Those, at least in the organisation of the corporation, who are invested with controlling or superior authority in that regard, represent its legal personality; their negligence, from which injury results, is the negligence of the corporation. The latter cannot, in respect of such matters, interpose between it and the servant, who has been injured, without fault on his part, the personal responsibility of an agent, who in exercising the master's authority, has violated the duty he owes, as well to the servant as to the corporation. To guard against misapplication of these principles, we should say that the corporation is not to be held as guaranteeing or warranting the absolute safety, under all circumstances, or the perfection in all its parts, of the machinery or apparatus, which may be provided for the use of employés. Its duty in that respect to its employés is discharged when, but only when, its agents, whose business it is to supply such instrumentalities, exercise due care, as well in their purchase originally, as in keeping and maintaining them in such condition as to be reasonably and adequately safe for use by employés.” The Court also quoted, with approval, the ruling of a State Court in Ford v. Fitchbury Railway Co. (y), in which it was said, “The rule of law which exempted the master from responsibility to the servant for injuries received from the ordinary risks of his employment, including the negligence of his fellow-servants, does not excuse the exercise of ordinary care in supplying and maintaining proper instrumentalities for the performance of the work required. One who enters into the employment of another has a right to count on this duty, and is not required to assume the risks of the master's negligence in this respect. “ The fact that it is a duty, which must always be discharged, when the employer is a corporation, by officers and agents, does not relieve the corporation" (2).

Expressions in favour of this view may be cited from

(y) 110 Mass. 241.
(z) But see Warner v. Erie Ry. Co., 39 N. Y. 468.

English cases (a); but, on the whole, English authorities are opposed to it. It is clear that masters are not bound to see personally to their business ; they may delegate it to competent persons; and this would not be the case if they were answerable to their servants for any of the acts or omissions of fellow-servants. Nor do they stand towards servants in

. the position of persons who invite the public to visit a certain place, and who are assumed to have warranted that due care has been taken by the contractor whom they employ (6).

A servant has no cause of action against his master if his own negligence have contributed to the injury of which he complains.

This branch of the subject may be conveniently divided into two parts : (1) A servant may choose to work with the full knowledge that the machinery or plant which he uses is dangerously defective. If he does so, he cannot recover in the event of his being injured. The principle Volenti non fit injuria applies. A workman engaged in sinking a pit was injured by the fall of a tub of water which was attached to a rope by hooks, and was being drawn up by machinery. The defendant had provided a proper giddy or slide to be used to prevent the tub falling back into the pit, and had given orders that it should be used when earth was drawn up. The plaintiff knew what sort of hook was employed, and made no complaint as to it, though he had complained that the giddy was not used in the case of water. The Court held

(a) Penhallovo v. Mersey Docks Board (1861), 33 L. J. Ex. 331 ; Stiles v. Cardiff Steam Navigation Co. (1864), 33 L. J. Q. B. 310; Baldwin v. Casella (1872), L. R. 7 Ex., p. 325 ; see remarks of Bramwell, B., at p. 326; Applebee v. Percy (1874), L. R. 9 C. P. 647.

(6) Frances v. Cockrell (1870), L. R. 5 Q. B. 184 and 501 ; Hyman v. Nye (1881), L. R. 6 Q. B. D. 683.

See also Tarrant v. Webb (1856), 25 L. J. C. P. 261 ; 18 C. B. 797 ; Potts v. Port of Carlisle Dock Co. (1860), 2 L. T. N. S. 283 ; and Balleny v. Cree (1873), 11 M. 626. (Workman in a paper mill injured by machinery defective through negligence of manager ; master not personally negligent ; master not liable.)


that the action would not lie. He had acquiesced in the use of the hook; and the negligence, if any, in not using the giddy, was that of the plaintiff's fellow-servants (c).

In a subsequent case it was shown that the defendant, the proprietor and manager of a coal mine, knew that the rules, published under 17 & 18 Vict. c. 108, as to testing a rope by which the pitmen descended, were habitually violated. A servant of the defendant was killed by the breaking of the rope; and had the facts stood thus, the Court might have held the master liable. It was proved, however, that the deceased knew of the habitual violation of the rule, and also that on the morning on which the accident took place, he was told by the banksman that he had better test the rope, and that nevertheless he got into the cage without doing so. In these circumstances the defendant was not liable (d).

As Cockburn, C. J., observed in Woodley v. Metropolitan Railway Co. (e)—an action by a workman in the employment of a contractor engaged by the defendants who had to work in a dark tunnel, and who was injured after a fortnight—“If a man, for the sake of the employment, takes it or continues it with a knowledge of its risks, he must trust to himself to keep clear of injury.” But knowledge of defects in machinery or dangers is not necessarily proof of acquiescence in them or readiness to face them. It is only “an ingredient of negligence,” to cite the expression of Byles, J., in Holmes v. Clark (f). A servant who is injured by reasons of defective machinery will be entitled to recover if he is induced to remain at work by a promise on the part of his master that the defect will be remedied. It was no answer in Holmes v.

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(c) Griffiths v. Gidlow (1858), 27 L. J. Ex. 405; 3 H. & N. 648.

(d) Senior v. Ward (1859), 1 E. & E. 385. Sometimes it is difficult to distinguish contributory negligence from wilful exposure to known risks. But the difference may be important in regard to the Employers' Liability Act, s. 2, sub-s. 3.

(e) L. R. (1877), L. R. 2 Ex. D.


(f) (1861), 6 H. & N. 349; 7 H. & N. 937 ; 30 L. J. Ex. 135; 31 L. J. Ex. 356. This case has been much criticised, and some of the remarks of the Judges in the Exchequer Chamber have been questioned. See remarks of Bramwell, B., in Britton v. Great Western Cotton Co., L. R. 7 Ex. 136.

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