Clarke-an action by a workman engaged in a cotton mill and injured while oiling certain unfenced parts of the machinery that he had remained at work after the fencing of the machinery was broken. To the argument that he had voluntarily incurred the danger and was in the same position as if he had originally agreed to work with unfenced machinery, Cockburn, C. J., replied, "there is a sound distinction between the case of a servant who knowingly enters into a contract to work on defective machinery, and that of one who, on a temporary defect arising, is induced by the master, after the defect has been brought to the knowledge of the latter, to continue to perform his service under the promise that the defect shall be remedied." So in Holmes v. Worthington (g), it was no answer to an action by a servant injured by the breaking of a defective rope that he had used it with a knowledge of its defects; the master had promised to see to them, and the servant might have reasonably believed that they would be put right. On the same principle, if a master is guilty of a breach of statutory regulations for the protection of his workmen, and one of them continues to work with knowledge of this fact and is injured, he will not necessarily be disentitled to recover damages. Britton v. Great Western Cotton Co. (h) is the leading case upon this subject. A workman named Britton was employed by the defendants to grease the bearings between the fly and spur-wheel of a steam-engine. The wheel race in which the fly-wheel revolved was unprotected at the place where Britton was placed to do his work. On the sixth morning of his employment he was caught by the flywheel, and killed. The Court of Exchequer held that there was an unqualified duty on the part of the defendants under 7 Vict. c. 15, s. 25, to fence the edge of the wheel race. the contention that Britton had voluntarily accepted the risk and that he was the author of his own misfortune, the Court replied that the jury had found him not guilty of contributory (g) (1861), 2 F. & F. 533(h) (1872), L. R. 7 Ex. 130.

To

negligence, and that the place was not necessarily and obviously dangerous.

Defects in machinery, or dangers connected with it, of which a master is or ought to be aware, may be latent even to adult servants. They may be obvious to persons of skill and experience, while invisible to others; and this ought to be considered by the jury in determining whether or not there has been contributory negligence or a willing acceptance of risks. In Grizzle v. Frost (i) a girl of sixteen years of age was set to work, without receiving instructions, at a machine for cording hemp; she was injured in putting, as directed by the foreman, hemp between the rollers. In charging the jury, Cockburn, C. J., said, "I am of opinion that if the owners of dangerous machinery, by their foreman, employ a young person about it, quite inexperienced in its use, either without proper directions as to its use or with directions which are improper, and which are likely to lead to dangers of which the young person is not aware, and of which they are aware, as it is their duty to take reasonable care to avert such danger, they are responsible for any injury which may ensue from the use of such machinery." In several American cases the principle is clearly recognised that there is a peculiar duty to provide for the safety of young or inexperienced persons, that dangers may be latent to persons of inexperience, and that it would be unreasonable to suppose that they agree to accept risks of the natures which they are ignorant. Spelman v. Fisher Iron Co. (k) is a case which would probably be followed here. The plaintiff was employed in blasting; he was injured by the premature explosion of a newly invented powder. He did not know its nature, but it was unfit and unsafe for the purpose for which he had been directed to use it. It was held that a right of action existed. This qualification appears to be recognised by Lord Cranworth, who in Bartonshill Coal Co. v. Reid says, "It may be that if a master employs inexperienced workmen, and directs them to act

(i) (1863), 3 F. & F. 623.

(k) 56 Barb. N. Y. 151.

under the superintendence and to obey the orders of a deputy whom he puts in his place, they are not, within the meaning of the rule in question, employed in a common work with the superintendent (l)."

(2). If a servant be guilty of culpable negligence which has contributed to his injury, he cannot recover, even though the master has been guilty of negligence. Thus in Senior v. Ward (m) the defendant, though guilty of gross negligence, was not liable because the plaintiff, who had been injured by the breaking of a rope used for lowering the cage down the shaft of the pit, knew that the rope was not regularly tested, and because he had disregarded a warning given by the banksman that he had better examine the rope before he went down.

Some of the authorities seem to draw no distinction between the negligence of a child and that of an adult. For example, when a boy of sixteen was injured owing to an explosion, and there was evidence that the defendant's manager had allowed the plaintiff to do that which it was not his duty to do, and which it was dangerous for an inexperienced hand to do, the Court refused to hold the defendant liable (n). So in Singleton v. Eastern Railway Co. (o), the defendants were not liable for injury sustained by a child of three and a half years, who had strayed upon their line-though in this case it was not clear that the defendants were to blame. In Mangan v. Atherton (p) no action lay at the instance of a child who was injured by putting his fingers between the cogwheels of a crushing machine, while another child turned the

(7) 3 Macq. 294. See also Lord Chelmsford's remarks at p. 311. (m) (1859), 28 L. J. Q. B. 139. (n) Murphy v. Smith (1865), 12 L. T. N. S. 605. In Willetts v. Buffalo Ry. Co., 14 Barb. 558, it was held that a lunatic might be guilty of contributory negligenee. Apparently a child cannot recover if the person in whose charge he is, is guilty of contributory negligence; Waite v. North-Eastern Ry. Co. (1858), E. B. & E. 719; 5

Jur. N. S. 936.

(0) (1859), 7 C. B. N. S. 287; Abbott v. Macfie (1863), 33 L. J. Ex. 177; Wardle worth v. Walker (1873), 37 J. P. 52.

(p) (1866), L. R. 1 Ex. 239; 35 L. J. Ex. 161. See criticisms on this case in Clark v. Chambers (1878), L. R. 3 Q. B. D. 327. Compare Campbell v. Ord, Court of Session (1873), 1 R. 149.

handles-though in this case also it was not clear that the defendant was guilty of any negligence.

It is difficult, however, to believe that a master would not be liable if young persons were allowed to work in and about machinery, the dangers of which he did and they did not understand (g).

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APPENDIX A.

THE principle decided by Priestley v. Fowler (1837), 3 M .& W. 1, is obscure. It was on a motion to arrest judgment, and it is uncertain whether the negligence was in over-loading a van or in not providing a proper van. The duty of the defendants as alleged in the declaration was to use due and proper care that the said van should be in a proper state of repair, that it should not be overloaded, and that the plaintiff should be safely carried thereby." The judgment can scarcely be said to lay down any clear rule of law. It contains loose expressions and analogies, which are not strictly accurate. It seems to show that the difference between the obligations of one who employs a contractor and a master who employs a servant was not present to the Court. "Lord Abinger," says Lord Justice Brett, in his evidence before the Select Committee on Employer's Liability, "who had been one of the greatest advocates ever known at the bar, had an advocate's talent, which mainly consists in the invention of analogies, and there never was a more perfect master of that art than Lord Abinger, and he took it with him to the bench; and I think it may be suggested that the law, as to the non-liability of masters with regard to fellow-servants, arose principally from the ingenuity of Lord Abinger in suggesting analogies in the case of Priestley v. Fowler, where the Court stated the law thus: Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of others, and can give notice of any misconduct, incapacity, or

(q) Lynch v. Nurdin (1841), 1 Q. B. 29, where the question whether a child could be guilty of contributory negligence was decided to be a question of fact for the jury. (Defendant left his horse and cart in street unattended; plaintiff, a child of seven

6

years of age, got upon cart in play, and another child led the horse; plaintiff injured; defendant liable though plaintiff a trespasser, and had contributed to mischief.) See remarks in Lygo v. Newbold (1854), 9 Ex. 302.

neglect of duty, and leave the service if the common employer will not take such precautions and employ such agents as the safety of the whole party may require. By these means the safety of each will be made more effectually secured than could be done by a resort to the common employer for an indemnity in case of loss by the negligence of each other."" The doctrine was clearly laid down in America, in 1842, in Farwell v. Boston & Worcester Cor., 4 Met. 49. The first English case in which it is distinctly stated was Hutchinson v. York, Newcastle, and Berwick Ry. Co., 19 L. J. Ex. 296; 5 Ex. 343, decided in May, 1850. The doctrine was also affirmed in Wigmore v. Jay (22 May, 1850), 19 L. J. Ex. 300; 5 Ex. 354; Seymour v. Maddox (1851), 20 L. J. Q. B. 327; 16 Q. B. 326; and Skipp v. Eastern Ry. Co. (1851), 9 Ex. 223; 23 L. J. Ex. 23.

The doctrine has never been applied except to acts of negligence, and the like. It is clear that it has no application to risks which are not incidental to the service. See Mansfield v. Baddeley, 34 L. T. 696.

APPENDIX B.

The following are the chief cases as to Common Employment:—

FELLOW SERVANTS.

Hutchinson v. York and Newcastle Ry. Co. (1850), 5 Ex. 353. (Servant of defendants and engine-driver of train in which he was riding in discharge of his duty.)

Wigmore v. Jay (1850), 5 Ex. 343; 19 L. J. Ex. 300. (See p. 303.) Wiggett v. Fox (1856), Ex. 832. (See p. 308.)

Degg v. Midland Ry. Co. (1857); 1 H. & N. 773; 26 L. J. Ex. 171. (See p. 314).

Senior v. Ward (1859), 1 E. & E. 385. (Pitman and banksman of a colliery.)

Searle v. Lindsay (1861), 31 L. J. C. P. 106; 11 C. B. N. S. 429; 10 W. R. 89. (See p. 305.)

Potter v. Faulkner (1861), 1 B. & S. 800; 8 Jur. N. S. 259; 31 L. J. Q. B. 30; 10 W. R. 93. (See p. 314.)

Waller v. South-Eastern Ry. Co. (1863), 32 L. J. Ex. 205; 9 Jur. N. S. 501; 2 H. & C. 102; 8 L. T. 325; 11 W. R. 731. (Railway guard and ganger of plate-layers.)

Gallagher v. Piper (1864), 16 C. B. N. S. 669; 33 L. J. C. P. 329. (See p. 304.)

Lovegrove v. London, Brighton and South-Coast Ry. Co. (1864), 16 C. B. N. S. 669; 33 L. J. C. P. 329. (Plaintiff, a labourer, in the service of defendants, employed in filling trucks with ballast; injured by the negligence of another servant in placing insecurely temporary rails.)