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interests ; because, apparently, (according to Martin, B.) the defendants were not masters of the plaintiff; and because (according to Watson, B.) they were “persons doing work for a common object but not under the same control or by the same orders.” In Warburton v. Great Western Railway (1), decided in 1866, the Court of Exchequer took the view that a porter of the London & North Western Railway Co., and an engine-driver in the service of the defendants, were not fellow-servants within the meaning of the rule, though both companies used the station, which belonged to the London & North Western Co., and the servants of the defendants were subject to the rules of the London & North Western Railway Co. and to the control of a stationmaster, a servant of the latter. The consistency of this decision with Wiggett v. Fox is not apparent. In the subsequent case of Swainson v. North Eastern Railway Co. (m), which was decided in 1878, the Court of Appeal, reversing the Exchequer Division, held that an engine-driver of the defendants and a signalman of the Great Northern R. Co. were not fellow-servants in the following circumstances : The station of the defendants and that of the Great Northern Company abutted upon each other and were approached by parallel lines of rails. The plaintiff was a signalman engaged and paid by the Great Northern Company, and wearing their uniform. But his duty was to attend to the trains of both Companies. While an engine of the defendants was upon the lines of the Great Northern Company, the driver negligently ran over the plaintiff. The Court held that the plaintiff and the driver were not engaged in a common employment.

The Scotch Courts did not at first recognise the exemption of an employer from liability for the acts of his servants; and about two years after Priestley v. Fouler was decided, we find them acting on the principle that an employer owes reparation to one servant injured by the negligence of

(1) (1866), L. R. 2 Ex. 30.
(m) See note (1). For a review of

most of these cases, Turner v. Great Eastern Ry. Co. (1875), 33 L. T. 431.

another (n). Indeed as late as 1852, in Dixon v. Ranken (0), the doctrine of the English decisions was rejected as contrary to the flaw of Scotland. In 1858, however, the House of Lords laid it down that the law of the two countries on this point was identical (p). Since that date the Scotch Courts have carried the exemption further than the English Courts have done. In Woodness v. Gartness Mineral Co. (9), a majority of seven judges (the Lord Justice Clerk dissenting) held that the representatives of a miner who was killed owing to the negligence of the defendants' underground manager, could not recover from the defendants, inasmuch as the miner, though the servant of a contractor engaged in sinking a shaft, and the manager had entered into “one organisation of labour for one common end.” “A workman,” it was said by the Lord President, “encounters and undertakes on entering a mine all the risks naturally incident to the work—a principle which seems to me necessarily to exclude all secondary responsibility. The whole persons engaged in a mine form one organization of labour for one common end (however different their functions may be) and are all subject to one general contract, exercised by the mine-owner, or those to whom his authority is delegated.” No English decision, not even Wiggett v. Fox, goes so far as this case, which seems to carry to an illegitimate extent the theory of a fictitious undertaking ; and some of the English cases-for example, Turner v. Great Eastern Rail. Co. (1)-are not reconcileable with the views of the Scotch judges.

(n) Sword v. Cameron, Feb. 13, 1839, 1 D. 439.

(0) 31 Jan., 1852; 14 D. 420.

(P) Reid v. Bartonshill Coal Co. (1868), 3 Macq. 266.

(9) Feb. 10, 1877, 4 R. 469, overruling Gregory v. Hill, 8 Macq. 282.

(r) (1875), 33 L. T. 431. (Defendants employed contractor to unload their coal-trucks at shoots and sideways constructed for that purpose. The contractor employed his own servants,

among whom was the plaintiff. The plaintiff while

engaged was injured by the negligent shunting by the defendants' servants of an engine, which was bringing coal-trucks to the sideways and shoots; plaintiff entitled to recover, there being no common employment between the engine driver and the plaintiff.) See also Bland v. Ross (1860), 14 Moore P. C. 210. Notwithstanding the dictum of Pollock, C.B., in Southcote v. Stanley, 1 H. & N. 247, 250, and the decision in Albro v. Jaquith, 4 Gray, 99, there seems no good reason for supposing that one fellow

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As the reason generally given for the non-liability of a master for injuries sustained by servants through the negligence of fellow-servants is the existence of a tacit agreement on the part of the former to accept all the ordinary risks attending their service, it might seem to be proper to confine this exemption to cases in which a contract of service exists. This, however, has not been done. Volunteers are treated as if they were servants. A clerk in the employment of Messrs. Pickford, carriers, voluntarily assisted the servants of a railway company in turning a truck on a turn-table. By the negligence of one of the company's servants he was killed. Such were the main facts in Degg v. Midland, Rail. Co. (8); and the Court of Exchequer came to the conclusion that the deceased by voluuteering his services could not bave any greater rights or impose greater duties on the defendants than would have existed if he had been a hired servant. It was urged that the plaintiff was a trespasser or wrongdoer. The cases of Bird v. Holbrook (t) and Lynch v. Nurilin (u) were cited in support of the contention that Degg, though a wrongdoer, could maintain an action. But the Court overruled this argument, on the ground that a man could not by his own wrong impose a duty. This decision received the approval of the Exchequer Chamber in the subsequent case of Puller v. Faulkner (w). There the plaintiff had, at the request of the defendants' servant, assisted him in putting bales of cotton into a lorry, and was injured while so doing. The Exchequer Chamber expressed the opinion that Degg v. Midland Rail. Co. was well decided. Erle, C. J., in delivering the judgment of the Court, said with respect to the rights of a volunteer,“ Such an one cannot stand in a better position than those with whom he associates himself in respect of their master's liability: he can impose no greater liability upon the master


servant is not liable to another fellowservant for damages to the latter by the negligence of the former.

(s) (1857), 26 L. J. Ex. 171 ; 1 H.

& N. 773.

(t) (1828), 4 Bing. 628.
(u) (1841), 1 Q. B. 29.
(x) (1861), 1 B. & S. 800.

than that to which he was subject in respect of a servant in his actual employ.” In this instance the plaintiff lent his assistance at the request of a servant who had no authority to employ. Had it been part of the regular course of business to do what the so-called volunteer did, and had he acted with reference to goods to be delivered to him, the difference would have been material, Thus, when a person who had sent a heifer by rail to Penrith Station assisted in shunting into a siding, with the assent of the station-master, the horse-box in which the heifer was, it was held that he was not a volunteer in the sense of the decision in Degg v. Midland Rail. Co., and that he could recover from the defendants for the negligence of their servants (y). He only did for himself, with the permission of the Company, what they were bound by contract to do for him.

The exemption of masters has been curtailed by the Employers' Liability Act of 1880 (43 & 44 Vict. c. 42), which will be found printed in a subsequent chapter. Even, however, at Common Law there are important qualifications to the non-liability of a master.

A master is responsible for injuries to his servant by reason of his own negligence or that of his partner.

He will not be exonerated because he himself acts as a servant. In Ashworth v. Stainwix & Walker () the two

(y) Wright v. The London and North-Western Ry. Co. (1875), L. R. 10 Q. B. 298; 1 Q. B. D. 252 ; 45 L. J. Q. B. 570 ; 33 L. T. 830. This followed the previous decision. Holmes v. North-Eastern Ry. Co. (1869); L. R. 4 Ex. 254; (1871) 6 Ex. 123.

(A consignee of coal waggon went to it with the permission of the station master, and took some coal. Having then stepped down upon the flagged way, he was injured by one of the flags

giving way; entitled to recover, though he was not unloading in the usual way.) See also Wyllie v. Caledonian Ry. Co. (1871), 9 M. 463. (A driver in employment of cattle dealer was engaged along with servant of defendants in putting his master's cattle into a truck at a siding ; an engine, driven by one of defendants' servants, pushed a waggon against the truck ; defendants liable.)

(z) (1861), 30 L. J. Q. B. 182; 7 Jur. N. S. 462; 3 E. & E. 701.


defendants were lessees of a coal mine and in partnership. One of them acted as banksman. A tram plate fell down the pit and injured the plaintiff. It was proved that the banksman's attention had been called to the loose state of the plate, and the jury found that he was guilty of negligence. The Court held that he was liable in respect of his personal negligence, and that the other defendant was liable as partner. The master is not bound to do his work himself. “He has not contracted or undertaken,” says Lord Cairns in Wilson v. Merry (a), " to execute in person the work connected with his business,” but “to select proper and competent persons to do so, and furnish them with adequate materials and resources for the work.” But if a master choose to do his work in person, or if he personally interfere with the execution of work, he will incur responsibility to fellow-servants for his own negligence. He will not be regarded as a fellowservant because he works with them (6).

A master is bound to exercise reasonable care in selecting servants.

He will be liable, not because his servants are incompetent but because he has been personally negligent in choosing them. The fact that a person known to be without experience was employed as an engine-driver, or in some other post requiring skill (c), or that a habitual drunkard was placed in a position of great responsibility, would be proof of negligence(d). No doubt, too, a master is bound to provide sufficient servants

(a) (1868), L. R. 1 S. & D. 326.

(0) Mellors v. Shaw (1861), 30 L. J. Q. B. 333. (One of the defendants, owners of coal mines, acted personally as superintendent; he took no pains to make the shaft safe, though it was pointed out to him that it was unsafe ; defendants liable to a miner

injured by the fall of a stone.)

(c) Shearman and Redfield on Negligence, 90.

(d) Gilman v. Eastern Railroad Co., 10 Allen (Mass.) 233. (Evidence that defendants employed an

habitual drunkard as switchman.)

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