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that it was known, or might by the exercise of due skill and
attention have been known, to the defendant, who was the
employer of the deceased." " I take it to be perfectly clear,"
said Lord Wensleydale, "that in tliose cases there is no
warranty. All that the master is bound to do is to provide
machinery fit and proper for the work, and to take care to

{g) 2 Maeq. 30 ; 1 Tat. 417. (A) 1 Pat. lOil ; i Mac<i. 215.


luivc it superintended by himself or l)is workmen in a fit and
proper manner." The same question had been discussed by
the Courts of Common Law in Wigmore v. Jay (i), Roberts
V. Smith (k), Omnond v. Holland (l), Williams v. dough (m),
and other cases collected in Appendix B. They established
the principle that in order to support such an action, personal
negligence must be brought home to the employer.

A master is plainly liable when, as in Williams v.
Clough (n) and Boberts v. Smith (o), he supplies articles for
use by his servants knowing them to be unsafe. Ignorance
is not, however, always an excuse. A master is bound to use
reasonable care, esjDecially when the employment is a
dangerous one, to provide good and sufficient tackle and
machinery ; and it will be a question for a jury looking to
the whole facts to say whether he has failed in his duty. In
Murphy v. Phillips (j)) it was proved that the plaintiff, a
stevedore in the defendant's service, was injured by reason of
the breaking of a chain belonging to the defendant's ship.
The chain was worn, it had been in use for seven years, and it
had not been tested in the usual way during that time. The
jury found tliat tlie chain was not in a fit state for the
work ; that the defendant did not know of the defects in
the chain ; but that he might have discovered them had he
chosen to examine it. In these circumstances, though he
took no |iart in the work, he was held to be liable. " He
might," said Cleasb}^ B., "have appointed a fit and compe-
tent person expressly to superintend and see to the examining
and testing of the chain, and had he done so he would of
course have been himself exempt from liability ; or he might

(0 (1850), 5 Ex. 354; 19 L. J. Jfolmes y. C'fark (1S62), SI L. J. E.v.

300. • ^'<i>6; Holmes \. lVurtInniilon(\m\),

ik) (1857), 2 H. & N. 21.3 ; 3 Jur. 2 F. & F. .^)33. See, liowc'ver, Dudlot

N. S. 469; 26 L. J. Kx. 319. v. llroimi. Law Times, June 25, 1881,

(^) (18.58), E. B. & E. 102. i«. 135, reversing the decision of

(w) (1858), 3 H. & N. 258 ; 27 L. Divisional Court. Some of tin'

J. Ex. 325. remarks in tlie judf^ments in Murjihy

(n) Sec note (7/1). v. P/iil/i/i.i appear to be not in ac-

(0) See note {k). cordancu with other authorities.

{])) (187G), 35 L. T. 477 ; also



have examined the state of the chain himself." Davies v.
England (q) is an instructive case on this subject. The defen-
dant employed the plaintiff in cutting up carcases which the
former, it was alleged, knew to be diseased, but which the
latter did not. The servant was injured by the virus in the
meat, and the defendant was answerable. In this case two
counts which did not allege knowledge by the defendant
were held bad.

These cases did not distinctly determine whether the
obligation on the part of the master to take care might be
delegated to others. This ([uestion came before the House of
Lords in 1868 in Wihoii v. Merry [r), and Lord Cairns thus
answered it. " The result of an obligation on the master
personally to execute the work connected with his busi-
ness, in place of being beneficial, might be disastrous to
his servants, for the master might be incompetent personally

(q) (1864), 33 L. J. Q. B. 321 ;
Pollock V. Cassidji (1870), 8 M. 615.
(Plainti(F, while engaged in remov-
ing stones from bottom of a pier,
injnred by the fall of embankment at
the foot of which he was working,
and which had not been sufficiently
sloped ; the plaintiff not a skilled
workman, accpiaiuted with the
proper angle at which embankment
should be sloped ; defendant liable. )
Mctzqer v. Hcarn, N. Y. S. C,
American Law Review, 485 (1881).
(Master liable to servant for accident
caused by overloading floors of his
building.) Oclbseiiheui v. Sluiplcy,
N. Y. C. of Ap. (1881), American
Law Kcvie\V, 619. (Defendants
directed their foreman to test a
boiler \mder pressure of 150 lbs.
He tested it up to 200 lbs. ; it burst,
and injured the plaintiff and servant ;
defendants liable, even though the
foreman's conduct w'as wanton and
wilful.) At Common Law there is
in a seaman's contract no implied war-
ranty of seaworthiness as to a ship ;
see Couch v. Strd, 3 E. & B. 402,
also Willes, J., in Gallagher v.
Piper, 33 L. J. C. P. 331. This,
however, is altered by the Merchant

Shipping Act of 1876, s. 5, whicli
says : "In every contract of service,
express or implied, between the
owner of a ship and the master, or
any seaman thereof, and in every
instrument of apprenticeship wliereby
any person is bound to serve as an
apprentice on board any ship, there
shall be implied, notwithstanding
any agreement to the contrary,
an obligation on the owner of the
ship, that the owner of the ship and
the master, and every agent charged
with the loading of the ship, or the
preparing thereof for sea, or the
sending thereof to sea, shall use all
reasonable means to insure the sea-
worthiness of the ship for the voyage
at the time when the voyage com-
mences, and to keep her in a sea-
worthy condition for the voyage
during the same : Provided, that
nothing in this section shall .suliject
the owner of a ship to any liability
by reason of tlie ship being sent to
sea in an imseaworthy state where,
owing to special circumstances, the
so sending thereof to sea is reasonable
and justifiable.")

(r) L. R. 1 S. & D, 326.


to perform the work. At all c^•cnts, a servant may choose
for himself between serving a master who does, and a master
who docs 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 employ-
ment 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
;ind 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 per-
sonally carry on their own business. This point arose in Allen
V. JS^ew Gas Go. (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 del'eudants' manager, Farren, had
been called to them, and he had promised to repair them.
" The gates," said the Court, " were dangerous when shut, not
dangerous when against the wall and wedged up. Now,
cither some workmen as such moved the gates, or the wind

(i) (187(3), L. li. 1 Ex. 1). 251 ; 45 L. J. Hi. 663 ; 34 1.. T. 541.

master's LFAllFLITY TO SKRVAXT.S. 323

did SO, and then tlie workmen ouglit 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 work-
men, 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 conclu-
sion, and have decided that the knovvledge 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 ser-
vant except in so far as such servant is charged with the per-
formance of the master's duty to the servant " (n). The point
came before the Supreme Court of the United States in
Hough v. Texas d- Pacific Raihvay Co. (x), 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 negli-
gence of the company's master mechanic, who had full con-
trol over the engines, and who knew of the defects, and had
promised they should be repaired. His competence was un-
questionable, and it was urged that there was no liability,
inasmuch as he was a fellow-servant of the deceased. The

{t) With the reasoning at p. 25.5 gence by liis manager, or agent,

compare Murphy v. Philips^ The whose employment may he so distinct

fact is that the authorities are not at from that of the injured servant,

one as to this. Some judges seem to that they cannot with propriety be

assume that a master cannot delegate deemed fellow-servants ? And if a

ills duty, to keep machinery, plant, master's personal knowledge of

&c., ill' a state of repair, "in the defects in his machinery be neces-

condition in which, from the terms sary to his liability, the more a

of the contract, or the nature of the master neglects his business and

employment, the servant has a right abandons it to others, the less will

to expect that it would be kept;" he be liable."

Cockburn, C.i., \\\ Clarke v. Hohnes, («) AVood's Master and Servant,

7 H. & N. 944, "Why," asks 886.

Bylcs, J., in the same case, "may (x) (1379), 10 Otto, 213.

not the master be guilty of negli-


Supreme Court, however, overruled this defence, observing,
" Those, at least in the organisation of the corporation, who
are invested witli controlling or superior authority in that
regard, represent its legal personality ; their negligence, from
Avhich 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 perfec-
tion in all its parts, of the machinery or apparatus, which may
be provided for the use of emplo3'es. Its duty in that respect
to its employes is discharged wdien, 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 employes." The Court also
quoted, with approval, the ruling of a State Court in Ford v.
Fitchhury 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 " (s).

Expressions in favour of this view may be cited from

(r/) 110 Mass. 241.
(c) But .see Warner v. L'rie Ry. Co., 39 N. Y. 468.


Euglisli cases {<i.) ; but, on the whole, Englisli authorities are
opposed to it. It is clear that masters are not bound to see
personally to their business ; they may delegate it to compe-
tent 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 tlie contractor whom they employ (6).

A servant has no cause of action against his master
if his oAvn negligence have contributed to the injiuy
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 w^orkman engaged in sinking a pit
was injured by the fall of a tub of water which Avas 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) PenJuillov; v. Mersey Docks See also Tarrant v. JVebb (1856),
Board (1861), 33 L. J. Ex. 331 ; 25 L. J. C. P. 261 ; 18 C. B.
Stiles V. Cardiff Steam Navigation 797 ; Potts v. Port of Carlisle Dock
Co. (1864), 33 L. J. Q. B. 310 ; Co. (1860), 2 L. T. N. S. 283 ; and
Baldwin v. Casella (1872), L. K. Ballcmj v. Crcc (1S73), 11 M. 626.
7 Ex., p. 325 ; see remarks of (Workman in a paper mill injured
Bramwell, B., at p. 326; Applcbee by machinery dtt'ective through
V. Percy (1874), L. K. 9 C. P. 647. negligence of manager ; master not

(b) Frances v. Cockrell (1870), L. personally negligent j master not
11. 5 Q. B. 184 and 501 ; Hyman v. liable.)

Nye (1881), L. R. 6 Q. B. D. 683.


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 tlie 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. Metroj^olitan
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 negli-
gence," to cite the expression of Byles, J., in Holmes v.
Clark (/). 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 tliat
the defect will be remedied. It was no answer in Jlolnies v.

(c) Grijfitlui V. Gidlojr (18.'')8), 27 384.

L. J. Ex. 405 ; 3 II. & N. G48. (/) (1861), 6 11. & N. 349 ; 7 H.

(d) Sr.nior v. Ward (1859), 1 E. k k N. 937 ; 30 L. J. Ex. 135 ; 31 L.
E. 385. Soinetiincs it is diilicult to .1. Ex. 356. This case has been
distinguisli contiibutory iicglif^eiicc iinicli criiicisuil, and sonic of the re-
I'rom wilful exposure to known risks. marks oi' tlic Judges in the Excliequer
Btit the (lifFerenee may be important Ciiambcr have bwn <|uestioned. See
in regard to the Employers' Liability remarks of Hiamwell, 15., in Brillon
Art, s. 2, sub-s. 3. v. (Irrnt IVcsterii CvUon Co., L. K.

(r) L. l\. (1877), L. R. 2 Ex. D. 7 Ex. 136.

master's liability to servants. 327

Clarke — an action by a workman engaged in a cotton mill
and injured while oiling certain luifenced parts ol" the
machinery — that he had remained at work after the I'encing 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 machi-
nery, 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. Worthinyton (<j),
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 tact and
is injured, he will not necessarily be disentitled to recover
damages. Britton v. Great Western Cotton Co. {k) 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 fly-
wheel, 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. 2o, to fence the edge of the wheel race. To
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. i: F. 533- {h) (1872), L. R. 7 Ex. 130.


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 ex-
perience, while invisible to others ; and this ought to be con-
sidered by the jury in determining whether or not there has
been contributory negligence or a willing acceptance of risks.
In Grizzle v. Frost (/) 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 arc
improper, and which are likely to lead to dangers of Avhich
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 Avhich 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 younger 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. Spclman 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 in-
vented 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 quali-
fication 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

(0 (1863), 3 F. & F. 623. (k) 56 Darb. N. Y. 151.

master's liability to servants. 329

under tlie superintendence and to obey the orders of a deputy
Avlioni he puts in his place, they are not, within the meaning
of the rule iu question, employed in a common work witli the
superintendent (/)."

(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, Avho 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 Railivay Co. (o), the defendants w^ero
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 (7;) no action lay at the instance of a
child who was injured by putting his fingers between the cog-
wheels of a crushing machine, while another child turned the

(I) 3 Macq. 294. See also Lord Jur. N. S. 936.

Chelmsford's remarks at p. 311. (o) (1859), 7 C. B. K S. 287 ;

(m) (1859), 28 L. J. Q. R. 139. Abbott v. ilacfic (1863), 33 L. J. Ex.

(«) Murphy y. Smith (1865), 12 L. 177; WardlcLCorthy. Walker {I^IZ),

T. N. S. 605. In Willetts v. Butfalo 37 J. V. 52.

Ry. Co., 14 Barb. 558, it v?as held that {p) (1866), L. R. 1 E.x. 239 ; Sf.
a lunatic might be guilty of coutribu- L. J. Ex. 161. See criticisms on
tory negligence. Apparently a child this case in Clark v. Cluimbers
cannot recover if the person in whose (1878), L. R. 3 Q. B. D. 327. Corn-
charge he is, is guilty of contributory pare Campbdl v. Ord, Court of
negligence ; JTaitc v. North- Eastern Session (1873), 1 K> 149.
Ry. Co. (1858), E. B. & E. 719 ; 5


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 {q).


The principle decided by Priestley v. Fowler (1837), 3 M .& "\V. 1, is

Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 34 of 77)