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does not supercede the old", p. 3.


tion. As, however, that allegation clearly was not material, the tra-
verse modo ct forDid did not make it necessary for the y)laintiff to
prove it. Even if the allegation in the declaration means only that
the plaintiff and his luggage were to be carried for hire and reward
to be paid by him, I am of opinion that the plaintiff was entitled to
the verdict, because I think he proved the issue. I incline to think
he proved it in the larger sense: the money having been paid on his
behalf by Lord Adoljjhus Vane, his master, may fairly be said to
have been paid by the plaintiff. But it is not necessary for the
disposal of this case to decide that. If the payment zuas put in issue,
all that the allegation means, is, that the reward was to be paid by
some one : it was unnecessary to prove payment by the plaintiff him-
self. That is abundantly shown by the case of Pippin z\ Sheppard,
II Price. 400, to which I referred in the course of the argument,
where the court got rid of the demurrer by holding it to be imma-
terial by whom the defendant was retained, or by whom he was to
be paid for his attendance. Assuming the traverse here to involve
a denial of the reward, the allegation was amply proved.

Rule absolute.'

•So in Austin v. Gt. Western Ry., L. R. 2 Q. B. 442 (1867), a child,
carried free under the mistaken belief that it was under three years of age
and so entitled under an Act of Parliament to free transportation with its
mother, was held entitled to recover; and this, even had tke mother intended
to defraud the railway, semble — [as to the effect of fraud on part of plain-
liff himself, see Fitzmaiirice v. R. R., 192 Mass. 159 (1906) and St. Louis,
etc, R. R. Co. V. Brautlcx. 168 Ala. 579 {\9\(i).]—Acc.: Ball v. Mobile, etc.,
Co, 146 Ala. 309 (1905): Littleiohn v. R. R., 148 Mass. *478 (1889), and:
.'Southern Ry. Co. v. Lee, 30 Ky. Law Rep. 1360 (1907).

So a mail agent or postal clerk carried under the railroad's contract
with the Government is a passenger to whom the carrier owes the highest
care to secure his safety, Arrozcsmith v. R. R., 57 Fed. 165 (1893) ; Scybolt
V. R. R., 95 N. Y. 562 (1884) ; and see Elliott on Railroads, 2nd Ed., §§ 1578-
1578a. In Pennsylvania it is held that, under tlie terms of the Act of
April 4, 1868 (repealed June 10, 1907, P. L. 523), which enacted that when
"any person (except passengers) sustains injury * * * while employed
* * * in or about any (railroad) train * * * his recovery shall be
the same as though an employe of the road," a mail clerk was not a pas-
senger. Pa. R. R. V. Price 96 Pa. 256 (1880). See, also. Smalhcood v. B. & O.
R. R., 215 Pa. 540 (1906), and Roivdin v. R. R.. 208 Pa. 623 (1904). As to
persons riding on free passes — see Phila. & R. R. R. v. Derby, 14 How. 468
(U. S.. 1852), and Elliott on Railroads, § 1606.

In Foulkcs V. Met. Ry. Co.. L. R. 5 C. P. D. 157 (1880), it was held •
that a railway allowing another railway company to use its tracks under
a traffic arrangement was liable to a passenger of such other company injured
because the platform of its station was in relation to the carriage of the
other road unsuitable as a place to alight. I

In Alton v. Midland Ry., 19 C. B. N. S. 213 (1865), it was held that ■
the plaintiffs, brewers, could not recover for the loss of services of a com-
mercial traveller employed by them who was injured while travelling upon
the defendant's line on a ticket purchased by himself; but see criticism
of Lindlcy and Smith, LL. J., Taylor v. Ry. Co., L. R. 1895, i Q. B. 134. and
compare Taylor v. Neri, i Esp. 386 (i795) ; ccc., Fainnouut. etc., Co. v.
Stutlcr, 54 Pa. 375 (1867), mother suing for loss of services of infant son
[a husband's right to recover for loss of services of his wife, injured while
a passenger, is, however, beyond question. See Madara v. R. R.. 192 Pa. 542
(1890) ; Machcn v. R. R.. 13 Pa., S. C. 642 (1900)] contra, Ames v. Union
Ry. Co., 117 Mass. 541 (1875).

Even wlicn the train on which the plaintiff rides is not being used for
the carriage of passengers he is, if invited to ride thereon by an agent of


In the Queen's Bench Division, 1897. L. R. (1898), i Q. B. 56.

Appeal from an order of a judge at chambers as aftermen-

The action was brought to recover damages in respect of injury
to a horse belonging to the plaintiff. The statement of claim alleged
that the plaintiff" delivered to the defendants a horse, the property
of the plaintiff", to be agisted, kept,- and taken care of by the defend-
ants in consideration of a payment of one shilling a day by the
plaintiff to the defendants; and the defendants promised the plaintiff
in consideration of the premises to safely keep, agist, and take care
of the said horse; and that in breach of the said contract the de-
fendants did not safely keep, agist, and take care of the said horse,
but negligently erected in the field in which the said horse was turned
out a low wire fence, and negligently permitted the grass to grow
so as to hide the said wire fence, whereby the plaintiff's horse was
injured. Alternatively, the statement of claim alleged that the de-
fendants in breach of their contract negligently allowed the said
horse to be kept and to remain in a field containing the said wire
fence so concealed as aforesaid, whereby the plaintiff's horse was

It appeared at the trial that the plaintiff' had delivered the horse
in question to the defendants for agistment, and that the horse had
been placed in a field where there was a barbed wire fence concealed
bv long grass, through which injury had been occasioned to the horse.
The learned judge left it to the jury to say whether it was negligent
on the part of the defendants to put the horse in a field where there
was such a fence as that in question. The jury found for the plain-
tiff for 30/. damages. The master held on taxation that the plaintiff
was entitled to the costs of the action on the High Court scale; but
on appeal the judge reversed his decision, holding that the action was
one founded on contract within the meaning of s. 116 of the County
Courts Act, 1888, and therefore the plaintiff was only entitled to
costs on the county court scale.

A. L. Smith, L. J. I am of opinion that this is an action
founded on tort within the meaning of s. 116 of the County Courts
Act, 1888.1

Collins L. J. I am of the same opinion. I think some con-
fusion may possibly arise from the expression of the rule on this
subject as being that the test is whether the plaintiff is obliged, in
order to maintain his action, to rely on a contract. The relation of
bailor and bailee must arise out of some agreement of the minds of

the company empowered to give such an invitation, entitled to the exercise of
ordinary care for his safety and to a full disclosure of all latent risks known
to defendants, Harris v. Perry & Co., L. R. 1903, 2 K. B. 219; — if, however,
the agent has and is known to have no such authority the plaintiff accepting
his invitation is a mere trespasser, Purple v. R. R., 114 Fed. 123 (C. C. A.
8th Cir., 1902) ; Lygo v. Newbold, 9 Exch. 302 (1854).

'A portion of this opinion and a sliort opinion by Rigby, L. J., are


the parties to it; but that agreement of minds is not the contract con-
templated by that mode of expressing the rule to which I refer.
Such an agreement of minds is presupposed in the case of any rela-
tion which brings about the common law liability of a bailee to his
bailor. Where such a relation is established, the result of the cases
appears to be that, if the plaintiff can maintain his action by shewing
the breach of a duty arising at common law out of that relation, he
is not obliged to rely on a contract within the meaning of the rule;
but, if his cause of action is that the defendant ought to have done
something, or taken some precaution, which would not be embraced
by the common law liability arising out of the relation of bailor and
bailee, then he is obliged to rely on a contract within the meaning of
the rule. A distinction has been drawn between acts of misfeasance
and non-feasance which has given rise to some difiBculty ; but it
seems to me that, whether the matter complained of is one of mis-
feasance or non-feasance, the cjuestion really is whether it is em-
braced within the ambit of the common law liability arising out of
the relation between bailor and bailee. If it is, then the plaintiff is
not driven to rely on a contract within the meaning of the rule on the
subject of costs. But, if it is not, then the plaintiff must rely on a
contract in order to shew a cause of action, and the action is there-
fore one founded on contract. In the present case it is quite clear
that the duty upon a breach of which the action was founded was
one which arose at common law simply out of the relation of bailor
and bailee, and therefore the plaintiff was not driven to rely on the
contract. I quite agree that this question does not depend on the
form of the pleadings ; but the case of Corbctt v. Packington (1827)
6 B. & C. 268, which was decided at a time when it was essential
that the pleader should accurately state the cause of action, illustrates
what I have said with regard to the distinction between the liability
arising at common law out of the relation of bailor and bailee, and
any further liability arising on the terms of the contract of bailment.
It was held in that case that a count alleging that the plantiff had
delivered certain boars and pigs to the defendant to be taken care of
for reward, and that the defendant had in consideration thereof
agreed with the plaintiff to take care of them, and redeliver the same
to the plaintiff on request, was a count in assumpsit, and could not
therefore be joined with counts in case, because the alleged obliga-
tion to redeliver the pigs went beyond the common law duty of the
defendant as bailee, and could only arise out of the contract.

Appeal alloTi'cd.-

- "Where it is only necessary to refer to the contract to establish the
relationship liotween tlie parties, and the claim goes on to aver a breach of
dutv arisintr out of that relationship, the action is one of tort." Henn Colhns,
M.'R., Sachs v. Henderson. L. R. 1902. i K. B. 612. p. 616; it is. perhaps,
doubtful whether this principle was correctly applied to the facts of that case,
it being held that an action against a vendor of a house for removing part
of the fixtures therein before giving the vendee possession was, in sulistance.
an action of tort. See Pliillimore, J., in Steljes v. Ingram, 19 T. L. R. 534 (K
B.. T903"), p. 536. where he held that an action against an architect for a
failure to exercise due care and skill in supervising the erection of a build-
ing was founded on contract, and see Rich v. R. R., 87 N. Y. ^^82 (1882^ and
cf7 Masters v. Stratton, 7 Hill, loi (N. Y., 1845) ; but see, as to liability in


(b) Voluntary Assumption of Risk.

Assumption of risk has, until recently, generally been treated as a matter
of defence, displacing an existing prima facie liability, identical with contribu-
tory negligence or at most merely a species or variant thereof. The tendency
of modern decision is, however, to recognize that the two are distinct and
separate and that the plaintiff's knowledge of a danger which he deliberately
chooses to encounter may avail the defendant in one of two distinct ways
under different circumstances and conditions.

pirst. — Where the plaintiff without legal right in himself other than the
defendant's consent chooses, with full knowledge of the conditions which he
will encounter and the danger incident thereto, to go upon the defendant's
premises, use his chattels or otherwise associate himself with him.

Second.— Where the plaintiff has a legal right, independent and irrespective
of the defendant's consent, to go upon the premises, use the chattels or other-
wise associate himself with the defendant.

In the first class of case, where the plaintiff, having no right to come on
the defendant's premises, etc., the defendant, being under no duty to allow
him to do so, may annex such conditions to his consent as he may please and
is bound merely to make known the actual conditions under which such
privilege is allowed, the plaintiff being then put to his choice to take it or
leave it. The plaintiff's knowledge of the real condition of affairs or the fact
that it is obvious to him if he use his senses, renders the giving of notice
unnecessary and so, since no further duty is owed him by the defendant,
relieves the latter of even prima facie liability.

In such case it is the fact that the plaintiff knows the true conditions and
appreciates the danger incident thereto, that releases defendant from any
duty toward him. it is immaterial how great or small the risk may be or how
important or valuable to the plaintiff may be the object to be gained by
encountering it.

In the second class of case, the defendant, having no right to exclude the
plaintiff from his premises, etc., cannot dictate the terms on which he may
come thereon and does not discharge his full duty by giving notice of the true
conditions there existing. The mere fact that the plaintiff knows the danger
which he must face in order to exercise his right does not relieve the defendant
from liability. It is, however, important as bearing upon the amount of care
which the plaintiff must use in the exercise of his right, which must of course
be proportionate to the danger, or where the danger is so great that it would
be reckless and unreasonable for a prudent man to insist, in the face of it,
upon his extreme legal rights.

While such assumption of risk differs from contributory negligence, the

tort of an agent or servant for breach of his duty to serve his principal or
employer faithfully, lovally and exclusively. The Acker, Merrall and Condit
Co. V. McGaiv, 106 Md. 536 (1907), and note in 56 Am. L. Reg. 201 (Mar.

Whether an action by a shipper or passenger against his carrier is
founded substantially in tort, or contract depends on the nature and cause
of his injury. If the goods or passenger are injured or destroyed by the
active negligence of the company, the action is one substantially of tort,
Taylor v. .1/. S. & L. Ry. Co., L. R. (1895), i Q- B. 134- per Lindley, L. J., p.
138— and probably, also, if they are injured by a failure to take reasonable
precautions to secure their safe carriage, but not if the only default is a
failure to deliver them at their destination — tho' it be alleged to be due
to the carrier's negligent custody of them, Fleming v. Manchester, S. & L.
Ry. Co., L. R. 4, Q. B. D. 81 (1878)— but see Tattan v. Gt. Western Ry. Co.,
2 E. & E. 844 C1860).

See as to whether a verdict against one of several persons, jointly carry-
ing on the business of carriers, is good, Govett v. Radnidge, 3 East, 62
(1802) : Powell V. Layton, 2 B. & P., N. S. 365 (1806), and Poszi v. Shipton,
8 Ad. & E. 963 (1838) ; Smith v. Seward, 3 Pa. 342 (1846), per Gibson, C. J.


difference is one of degree' rather than of kind, and its legal effect is the
same — it operates as a defense which, while admitting the defendant's duty
and its breach, sets up tlic plaintiff contributory misconduct, for being delib-
erate it cannot properly be termed contributory negligence,* to relieve the
defendant from an admitted prima facie liability.

So whenever the plaintiff has an independent right to come into contact
with conditions under the control of the defendant, while he does not from
his mere knowledge of their actual nature and the incidental danger take on
himself the risk of injury, the defendant may always release himself from
liability by showing that the risk was so great that to encounter it was to court
almost certain harm and so, reckless, or that the plaintiff failed to take those
precautions which the known danger demanded from a prudent man.

It is. how^ever, only where the plaintiff is reduced to the alternative of
running the risk of a known danger or of abandoning the exercise of a legal
right, that his subjection of himself thereto is deemed involuntary. If his
right may be exercised, though less conveniently, without risk; if, rather than
put himself to a little troulile or endure mere inconvenience, he chooses to
encounter a known danger, he will be taken to have voluntarily assumed the
risk thereof.

It seems well, therefore, to divide the cases which deal with volun-
tary assumption of risk and, at this point, to treat of those which discuss the
voluntary or involuntary nature of the association, whether it is one which
the one associate is. free to allow or refuse at his pleasure and which the
other is or is not entitled of his right to enter into, and the effect thereof upon
the duties of the parties to such association, leaving those cases which deal
with knowledge of danger attendant upon the exercise of an independent legal
right for later consideration, together with contributory negligence and other
matters of defense and justification and excuse.

In the Queen's Bench Division, 1887. L. R. 18 Q. B. D. 68$.


Two alternative views have been submitted to us as to the effect
of the Employers' Liability Act, 1880. Is the true conclusion that
the Act has removed certain special obstacles to a workman's right
to sue wliich would not have existed in the case of other persons,
and which had been held previously to arise by implication out of the
relation of master and servant; and that the Act has only placed an
injured workman fas regards his remedies) in the same position
(with specified exceptions) as he would have occupied if he had not
been in the master's employ? Or has the Act gone further, and im-

' See per Holmes, J., Schlernmer v. B. R. & P. R. R., 205 U. S. i (1907),
p. 12.

'Indiana Oil Co. v. O'Brien, 160 Ind. 266 (1902). p. 273, "Carelessness in
regard to a matter is not the same as the exercise of deliberate choice in the
matter." See also. Gregory v. Elmira R. R. Co., 190 N. Y. 363 (1907) and
Cattano v. Metropolitan R. R. Co., 173 N. Y. 565 (1903), passenger on the
running board of an open street car spoken of as assuming the risk of usual
but not of exceptional dangers incident to their position, and see Sjnith. I.,
dissenting in Thaync v. Traction Co., 8 Pa. S. C. 448 (1898). Often, while
speaking of a deliberate choice to encounter a known danger as contributory
negligence, it is evident that such act is regarded as a voluntary assumption
of the risk incident thereto. So in Musselman v. Hatfield. 202 Pa. 489 (1902),
the court, wliile it holds that it is contributory negligence to use a highway
known to be defective, says. p. 491. that it is so "because the danger is
obvious and the risk voluntarily and unnecessarily assumed." For a discus-
sion of the differences between contributory negligence and voluntary assump-
tion of risk, see 21 Harv. L. R.. pp. 245-247 and 249, and Jaggard, J., Rase
V. Ry. Co.. 120 N. W. 360 (Minn. 1909).


posed on masters new duties and liabilities towards their servants
which the masters would not be under towards the general public or
the servants of anybody else. This is the first question we have to
solve. ^

For his own personal negligence a. master was always liable
and still is liable at common law both to his own workmen and to the
general public who come upon his premises at his invitation on busi-
ness in which he is concerned. But in the case of injuries arising
out of another servant's negligence, the workmen stood before recent
legislation at a disadvantage as compared with the world outside.
For damage done by the negligence of his servants acting within the
scope of their employment, the master, on the principle of respondeat
superior, was responsible to strangers. But a workman injured by
the negligence of a fellow-workman had no such redress. By en-
tering into a contract of service the common law inferred that he
had taken on himself the ordinary risks incident to such business as
was lawfully carried on upon his master's premises; and the much-
canvassed case of Priestley v. Fozi'Ier, 3 M. & W. i, and a series of
decisions following in its train, had engrafted on this doctrine the
grave corollary that the negligence of a fellow-servant in the common,
employ of the master was one of such ordinary risks. The corollary
gave rise to much apparent hardship and to much debate. In the
year 1880 the legislature passed the Employers' Liability Act, which
we have to construe, and it is now necessary to decide to what extent
legislation has altered as between master and servant the common
law, as by virtue of the decisions of the Courts it stood prior to this

Sect. I of the statute provides that: "^^'here personal injury is
caused to a workman by reason of any defect in the condition of
the employer's works," and in four specified instances by reason of
negligence of others in the employer's service, "the workman shall
have the same right of compensation and remedies against the em-
ployer as if the workman had not been a workman of nor in the
service of the employer nor engaged in his work." Does this language
do more than remove such fetters on a workman's right to sue as had
previously been held to arise out of the relation of master and
workman? The express words of the section seem to permit of only
one answer to this inquiry. An enactment which distinctly declares
that the workman is to have the same rights as if he were not
a workman, cannot, except by violent distention of its terms, be
strained into an enactment that the workman is to have the same
rights as if he were not a workman, and other rights in addition. It
cannot in the case of a defect in the employer's works be distorted
into the meaning that a new standard of duty is to be imposed on
the employer as regards a workman, which would not exist as regards
anybody else. * * *

The true view in my opinion is that the Act. with certain ex-
ceptions, has placed the workman in a position as advantageous as
but no better than that of the rest of the world who use the master's
premises at his invitation on business. If it has created any further
or other duty to be fulfilled by the master I do not know what it
is, how it is to be defined, or who is to define it.

* The reporter's statement of facts and the opinions of Lord Esher, M. R.,
and Fry. L. J., arc omitted.


In the present instance the injured person has fallen into a
more or less un fenced vat open to view, in a room in which he had
been at work for many months; the full danger and rihk of which
were as well known to himself as to his master or to any one else
I'.pon the premises. The county court juflge has found that the
plaintiit knew, but has added a further finding that the plaintiff was
guilty of no contributory negligence. We have to apply the Em-
ployers' Liability Act of 1880 to this simple state of facts. Treat
the plaintiff as freed from all fetters that would have arisen by im-
plication out of his contract of service, view him on the hypothesis
prescribed by the Act, as if he were not a workman, place him in the
category, most favoured by the law, of a visitor invited by the em-
ployer to come upon premises on business of the employer's own :
whc.t, on the above findings and on the undisputed facts, would be
his legal position as regards redress for the accident that has hap-
pened to him?

He would, on the prescribed hypothesis in the case of such an
accident, have to prove two things in order to succeed. The first,
that the defendant had been guilty of some negligence, that is to
say, of some breach of duty towards the plaintiff' himself. The
second, that the defendant's negligence had been the proximate cause
of such accident ; that there had not merely been incuria, but incuria
dans locum injuria. Whether there has or has not been contributory
negligence is, to speak precisely, only a branch of this second in-
quirv. Contributory negligence in a plaintiff only means that he
himself has contributed to the accident in such a sense as to render
the defendant's breach of duty no longer its proximate cause.

In order to answer the first inquiry, whether the defendant had
been guilty of negligence, the first step to be taken must be to con-

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 47 of 124)