John Macdonell.

The law of master and servant. Part I.--Common law. Part II.-- Statute law online

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beinc, for this purpose, the servants of the defendants Avhilst
en^a'^cd in doing work, each devoting his attention to the
work necessary for the completion of the whole, and Avorking
toc'ether.for that purpose." In this connection may be men-
tioned Murray v. Currie (It). The defendant had entrusted
the unloading" of a vessel to a master stevedore ; the plaintiff,

((/) (1856^, 11 Ex. 832 ; 25 L. .T. case turns, not .so much on the

Ex 188 • 2 Jur. N. S. 8.55. 'J'liis doctrine of connnon cuiiiloynient as

dcci-sion was questioned by t'oeklnun, on tlie fact that Davis was not acting

C ,\ in llourkc y. IVhUc Moss Co. ; as defendant's servant ; audit was not

and 'see remarks by Chunnell, 15., in necessary to decide that the ]daintiff

Abraham v Jlcymlds. and Davis were fellow scr\'ants.

(h) (1870), L. K. 6 C. r. 24. Tliis

master's liability to servants. ?00

a clock labourer, was employed by the stevedore and engaged
with Davis, one of the crew of the ship, in unloading, by
means of one of the winches of the vessel. The plaintiff
was injured through the negligence of Davis in working the
winch. Davis was paid by the defendants, but his wages
were deducted from the stevedore's bills. All the unloading
was under the control of the stevedore and his foreman. The
stevedore provided the labour, and he would have had to get
labour elsewhere if the ship had not found men. The ship-
owner selected such members of the crew as were to be
employed in unloading, but the stevedore selected the work for
them, and had control over them. The Court thought that
the defendants were not liable, on the ground that Davis
was not doing the work, and was not under the control, of the
defendant. " The question here is," said Wilies, J., " whether
Davis, who caused the mischief, was employed at the time
in doing Kennedy's work or the shipowner's. It is possible
that he might have been the servant of both, but the facts
here seem to negative that. The rule, out of which this case
forms an exception, that a servant or workman has no remedy
against his employer, for an injury sustained in his employ
through the negligence of a fellow-servant or workman, is
subordinate to another rule, and does not come into opera-
tion until a preliminary condition be fulfilled : it must be
shown that if the injury had been done to a stranger, he
woidd have had a remedy against the person who employed
the wrongdoer ... It was Kennedy's work he was em-
ployed upon, and under Kennedy's control."

"I apprehend it to be a true rule of law," said Brett, J.
" that if I lend my servant tg a contractor, who is to have
the sole control and superintendence of the work contracted
for, the independent contractor is alone liable for any
wrongful act done by the person while so employed. The
servant is doing, not my work, but the work of the indepen-
dent contractor." Roiirke v. Wlt'ite Moss Go. (i) ought here

(i) (187(3), L. K. 1 C. r. D. 55G ; (1877), L. 1!. 2 C. P. D. 205. Sec


to be noticed. The defendants, owners of a colliery, Mere en-
gaged in sinking a sliaft, and for that purpose had employed
among other "svorkmcn the plaintitf. After they had carried
on the work for some time, they entered into a contract with
one Whittle, to complete the sinking. Whittle was to provide
all the labour, and the company were to put at the disposal
of Whittle the necessary engine and to pay the engineer's
wages. Lawrence, the engineer, Avas employed by the
defendants and paid by them. Owing to his having
fallen asleep and not stopped the engine at the proper
time, the plaintiff was severely injured. Both the Common
Pleas and the Court of Appeal thought that the plaintiff
could not recover. In the former the decision was placed
by Coleridge, C. J., Archibald, J., and Lindley, J., on
the ground that both the plaintiff and Lawrence were the
servants of Whittle. " He (Lawrence)," said Coleridge, C. J.,
" was originally, and may be now, in the employment of the
defendants ; but the work he had to do at the time of the
accident was a necessary part of the work to be done under
Whittle's contract. He was at that time working under
the direction of Whittle, the working of the engine being
a part of one operation, the whole of which Avas being
done by Whittle. The plaintiff therefore was clearly
tiie servant of Whittle, and LaAvrence also Avas in one sense
the servant of Whittle, inasmuch as he Avas Avorkiug under
his orders, and subject to his control, although his Avages
Avere })aid by the defendants." "The real question," said
Archibald, J., " is Avhethcr LaAvrence Avas in the service of
Whittle or in that of the defendant. For this purpose, I
think he Avas in the service of Whittle." Cockburn, C. J. put
his decision on the same grounds. But the judgments of

nho Murjyhei/ V. Caralli (ISGi), S l\. liidtln'r-iii-lnw, while ridiiij,' to .sec

k C. 462 ; 34 L. J. K.\. 14 ; Kimhull about .some luiy wliiili he hiid onh-ivd

V. Cusliinan, lo:5 Mas.s. ]!I4. (Dc- fur tlio (h'ftndaiil, injincd the

lendant hoaidcd witli Ins i'athci-in- phiiiitill'; ihtt'iulant liable on the

hiw ; liis brotliii-iii-iaw took (.•arc of {ground that tlic brothcr-iii-hnv was

the d( fciidaiit's liorscs and carriaf^c, ciij^a^ud in Ids business with his

and ocfasioiiMJl}- drove them ; ilic assent.)

master's TJATULITY to SKIIVANTS. 311

Mellisli, L. J. and Baggally, J. A., seem to go no further than
deciding that at the time of the accident Lawrence was not
acting as the servant of the defendants ; and it is submitted
that the case does not decide that the plaintiff was the fellow-
servant of Lawrence. In his judgment Mellish, L. J., observes,
"that the effect of this agreement was that the wliolejob was
lent out to Whittle, but the engine was to assist him in
doing the work, and the engineer, though remaining the
general servant of the defendants and paid by them, was
while working at this shaft, to act under the control and orders
of Whittle. That, in my opinion, makes the acts of Lawrence,
while working the engine, the acts of Whittle and not of the
defendants. Lawrence's duty, according to the orders of
Whittle, was to have stopped his engine at the proper time,
and not doing this, he was negligent in not obeying the
orders of Whittle, and this in law amounted to the negligent
act of Whittle. It follows, therefore, that the defendants are
not liable ; and it is unnecessary to consider whether the
plaintiff" was the fellow-servant of Lawrence in Whittle's
employ." Baggallay, J. A., thought the defendants not
liable on the same ground, namely, that Lawrence Avas acting
as servant to the contractor, and did not express any opinion
upon the question of common employment.

Parallel, however, with these decisions, runs another series of
cases, some of which may not be reconcileable with the above.
The first one is Ahrahain]v. Reynolds (k), decided in 1860 by
the Court of Exchequer. The plaintiff, a servant of J. & Son,
went to defendant's warehouse to fetch cotton for defendants,
whose cotton was always carted by J. & Sou. The bales were
lowered by defendants' men into a lorry, and by the negli-
gence of one of the defendants' men a bale fell and hurt the
plaintiff. Tlie Court thought the defence of common employ-
ment not open to the defendants because (according to
Pollock, C. B.), though the workmen had a common object
they had separate ends and for some purposes antagonistic

{k) (1860), 5 H. & N. 143. See also Coomhcs v. Houghton, 102 Mass. 211.


interests ; because, apparently, (according to Martin, B.) the
defendants were not masters of the phiintiff; and because
(according to Watson, B.) they "were "persons doing work
for a common object but not under the same control or by tho
same orders." In Warburton v. Great Western Raihuay (l),
decided in 18G6, the Court of Exchequer took the view that
a porter of the London \: North Western llailway 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 Siv<i iuson v. North
Eastern Raihvay 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 follow-
ing circumstances : The station of the defendants and that
of the Great Northern Company abutted uiDon 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 I^ricstlct/ v. Foider was decided, we
find them acting on the principle that an employer owes
reparation to one servant injured by the negligence of

(0 (1866), L. ]{. 2 Kx. 30. of tlicse cases, Turner v. Great

\m) See note (/). For a review of Jiastern liy. Co. (1875), Wd L. T. 431.

master's liability to servants. '}]'?

another (oi). Indeed as late as 1852, in Dixon v. Ranken (o),
the doctrine of the English decisions was rejected as contrary
to the [law of Scotland. In 1858, however, [the House of
Lords laid it dowii 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 C<jurts
have done. In Woodnesi^v. Gartncss Mineral Co. {(j), a majo-
rity 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 under-
taking ; and some of the English cases — for example, TarJier
v. Great Eastern Rail. Co. (r) — are not reconcileable with
the views of the Scotch judges.

(n) Sword v. Cameron, Fcli. 13, engaged was injured by tlie negligent

1839, 1 D. 439. shunting bj' the defendants' servants

(o) 31 Jan., 1852; 14 D. 420. of an engine, which was bringing

Ip) Ri'id \. BartoiisMll Coal Co. coal-trucks to tlie sideways and shoots;

(1868), 3 Macq. 266. plaiutiif entitled to recover, there

(q) Feb. 10, 1877, 4 R. 469, over- being no common employment be-

ruling &'ref/o;7/ V. ///7/, 8 Mactj. 282. tween the engine driver and the

(?•) (1875), 33 L. T. 431. (Defend- phiintill.) See also Z'/aj^Z v. lloss

ants employed contractor to unload (I860), 14 Moore P. C. 210. Notwith-

their coal-trucks at shoots and standing the dictum of Pollock, C.l>.,

sideways constructed fol- that purpose. in Southcolc v. Stanley, 1 H . i^ N. 247,

The contractor employed his own 250, and the decision in Alhro v. Ja-

servants, among whom was the (/Mt7//, 4 Graj-, 99, there seems no good

plaintiff. The plaintiff Avhile so reason for supposing that one fellow-

314 THE LA^v of master and servant.

As the reason generally given for the non-liability of a
master for injuries sustained by servants through the negli-
gence of fellow-servants is the existence of a tacit agi'eement
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 Deg(j v. Midland
Bail. Co. (.s) ; and the Court of Exchequer came to the
conclusion that the deceased by volunteering his services
could not have 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 tres-
passer or wrongdoer. The cases of Bird v. Holhrook {t)
and Lynch v. Nurd in (u) were cited in support of the
contention that Degg, though a wrongdoer, could main-
tain 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 Fidler v.
Faidl-ncr{x). There tiie 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 Bcgy v. Midland Bail.
Co. was well decided. Erie, C. J., in delivering the judg-
ment of the Court, said with respect to the rights of a volun-
teer, " 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 lifililc to aiiotlicircllow- & N. 773.
servant fur danm^'i's to llic latter by (/) (1828), 4 ]',ing. ii28.

the negligoiKc, ot the lornicr. {«) (1H41), 1 (,). U. 2it.

(s) (18r.7). 2(J ].. .1. Kx. 171 ; 1 II. (•'•) (18G1), 1 \i. k S. 800.


tlian 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 tlie regular course of
business to do what the so-called volunteer did, and had
lie 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 Di>g<j v. j\[idl(tn<l. MalL 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 tlie
Employers' Liability Act of 1880 (4<3 & 44 Vict. c. 42), which
will be found printed in a subsequent chapter. Even, how-
ever, 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 liis own negligence or that of his partner.

He will not be exonerated because he himself acts as a
servant. In Anhworth v, Staiimvix t£- Walker (z) the two

(y) IFriijht v. The London and giving way ; entitled to recover,
North- Western llij. Co. (1875), L. K. thongli he was not unloading in tlie
10 Q. B. 298; 1 Q, B, D. 252; 45 usual way.) Sue also Wi/l/lev. Calc-
L. J. Q. B. 570; 33 L. T. 830. doniun Jbj. Co. (1S71), 9 M. 4(53. (A
This followed the previous decision. driver in employment of cattle
Holmes V. North-Eastern Rij. Co. dealer was engaged along with ser-
(1869); L. 11. 4 Ex. 254; (1871) vant of defendants in putting his
() E.K. 123. (A consignee ol a nuister's cattle into a truck at a
coal waggon went to it with the siding ; an engine, driven by one of de-
permission of the station master, and fendants' servants, pushed a waggon
took some coal. Having then against the truck ; defendants liable.)
stepped down upon the flagged way, (;) (18(51), 30 L. J. CJ. B. 182; 7
he was injured by one of the Hags Jur. ^'. S. 4(52; 3 E. & E. 7ol.


defendants were lessees of a coal mine and in partnership.
One of them acted as banksman. A tram j^late fell down the
jnt and injured the plaintiff. It was proved that the banks-
man's attention had been called to the loose state of the plate,
and the juryfound 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 liis work himself " He has not
contracted or undertaken," says Lord Cairns in Wilson v.
Merry {<(), " 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 chouse to do his work in'
person, or if he personally interfere with the execution of
Avork, he will incur responsibility to fellow-servants for his
own neghgence. He will not be regarded as a fellow-
servant because he works with them (b).

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 experi-
€nce 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 ncgligcnce(tZ).
No doubt, too, a master is bound to provide sufticient servants

(a) (1808), L. K. 1 S. & ]). 326. injured by the fall of a stone.)
(h) Mcllors V. Shaw (1861), 30 L. (c) Sheanuau and liedlield on

.]. Q. B. 333. (One of tlie defendants, Ne^^li^'euce, "JO.

u\\ ners of coal mine.s, acted ])er.sonally (</) diluuin. v. Eastern RailrondCo.,

as superintendent ; lie took no pains 10 Allen (Mass.) 233. (Evidence that

to make the shall safe, thougli it was defendants employed an habitual

pointed out to him liiat it was nn- drunkard as switehnniu.)
.safe ; defendants liable to a miner


for the work; though if a servant were to continue in a
Avorksliop or factory with full knowledge of this deficiency,
ho would be taken to have accepted the risk. In
Scixfoii, V. Haivhsivorth (c), the evidence was that five steam
engines, some of them situated apart from each other, Avero
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

If machinery or plant have defects which might
have been discovered by reasonable care on a master's
part, the master Avill be liable for injnries 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, Avould be vigilant even if they were careless, and
Avould seek to save them from perils which they Avere 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 Pater son Y.Wallace (/'), which was decided
in 1(S54. This was a claim by the widow and children of a
miner, who had been accidentally killed by the fall of a stone

(r) (1872), 26 L. T. 851 ; Skipp v. (/) I'aterfion's Scotcli Apiieals. i.

Eastern OoinUici L'y. 'Co. (1853), 23 38'J ; 1 .Alacci. 743.
L. J. Ex. 23.


■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 conse-
quence 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 Avas
wrong in disallowing the excej)tion. " 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 woi'k 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 nuister employing servants
upon any work, particularly a dangerous work of this
sort, is bound to take care that he does not induce
them to Avork under the notion that they are working with
good and sufficient tackle, whilst he is employing improper
tackle." Ha\in'^- j)i)liitc<l out that "in England, in Scotland,

master's liability to SRIIVANTS. 319

and ill every civilised country, one who rushes into
danger himself cannot say, ' That is owing to your negli-
gence,' " 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 Avas, 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 culpabl}' careless.
In the following year the same subject was further, consi-
dered in Brydon v. Steivcwt (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 Avas held

The same question arose in 1861 in Weems v. Matldehton (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 jiointed 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

Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 33 of 77)