Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenORY of JUDQE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 1999.H41 Decisions of the supreme courts of Engla 3 1924 022 346 013 a Cornell University J Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022346013 DECISIONS OF THE SUPREME COURTS OE ENGLAND AND SCOTLAND, LIABILITY OF PROPEIETOES, MASTERS, AND SERVANTS, FOE REPARATION OF INJURIES ARISING FROM ACCIDENTS AND THE^NEGLIGENOE OF PARTIES; INCLUDING OASES OF RAILWAYS, COAL-PITS, EOAD AND HARBOUR TRUSTS, AND PUBLIC CORPORATIONS. CONDENSED AND ARRANGED BY WILLIAM HAY, WRITER, DUNDEET EDINBURGH: T. & T. CLAEK, LAW BOOKSELLEES, 38 GEOEGE STEEET. LONDON: STEVENS AND NOETON. GLASGOW: JOHN SMITH & SON. M D C C L X. PREFACE. The design of this work has been to put together, in a condensed form, the leading decisions in the Supreme Courts of England and Scotland, in cases of liability for the reparation of injuries to the person, arising from accidents and negligence. The deci- sions include the various circumstances in reference to owners of property, employers and employed, under which questions of that nature have generally arisen. This branch of the law has of late assumed much practical importance, and its principles have been the subject of so much discussion, both here and in England, that the practitioner has in a manner lost his way in the conflict of opinion. The deci- sions are voluminous and wide spread ; and the English cases, more particularly, are necessarily beyond the reach of the great body of the profession. A condensed Chronological Eeport of the cases seemed necessary for general use, and it has been here attempted. The facts of the cases are given with the pleas of the parties, while the opinions of the Judges, explanatory of the decision, are given in some instances at consideijable length, and so as to be sufficient for all practical purposes of reference. Had the scope of the work permitted, several very excellent decisions of Sheriffs might have been given ; but as the intention has been to give the Decisions of the Supreme Courts only, this otherwise very desirable object cannot be attained. In some districts where many of the population are engaged in mining and manufacture, and in constant contact with intricate machinery, it is desirable that the law should be administered in conformity with fixed principles and precedent. Here- IV PEEFACE. tofore, undoubtedly, there has been much uncertainty, rendering the position of the professional adviser one of great difficulty in this branch of the law. Besides the Decisions, a short Summary or Digest of Proposi- tions in the law, as deduced from the cases, and arranged under distinct heads, has been attempted, while references have been given by which errors may be corrected. Ihe object being to give, as shortly as possible, the result of the cases, it is hoped that the attempt, necessarily defective, may, nevertheless, be of some use in leading to a correct understanding of a subject ad- mitted on all hands to be so fuU of difficulties, and in regard to which our most eminent Judges, in both countries, have differed in opinion. November, 1860. TABLE OF CONTENTS. CHAPTER I. LIABILITY OP MASTERS FOR NEGLIGENCE OP THEIR SERVANTS. Page Extent of Liability - ix Liability to Third Parties - x If Servant act Criminally - xi, xii Servant must be in line of duty - - ^ , - xii, xiii Wilful disobedience of Servant - - . xiii Carelessness of Servant - . ^ - xiv Servant exceeding his orders - xv CHAPTEE II. master's LIABILITY FOR INJURIES SUSTAINED BY HIS SERVANT. Master's liability for neglect xvi Servant bound to take risk of all faultless accidents incident to nature of service - xvi Master not free merely on account of some imprudence or rashness in Servant - - xvii Servant not bound to risk his safety in cases of imminent danger xvii Some servfces where danger necessarily accompaniesivith exception xvii Master's duty to appoint Managers and Foremen with due care xviii In Coal Mines, Master liable for neglect in the inspection, if ex- plosion occurs xviii Liable for insufficiency of Scaffolding and Materials xviii Decision in England on the point to the effect that as master appointed a properly qualified Foreman he was not liable xviii, xix Servant's own rashness bars elaim xix When is Servant held in Master's employment ' xx CHAPTEE III. master's LIABILITY WHEN INJURY IS BY ONE SERVANT TO ANOTHER. Former practice in Scotland for liability - xxi, xxit Practice in England against liability when no fault or negligence in Master . - - - xxiii, xxi-?; VI TABLE OF CONTENTS. Page Eule applies to all workmen in a general undertaking although employed hy Suh-Contractors xxiv A person voluntarily assisting Servants and injured by Servants, comes under same rule xxiv Eule as fixed in Bartonshill case xxvi, xxviii Is there any distinction as to Superior and Subordinate Servants xxvii What is Common Employment xxviii Lord President's opinion in Brotonlie xxix CHAPTEE IV. WHEN THERE IS FAULT ON BOTH SIDES. Fault on Pursuer must directly contribute to injury xxxi Slight faults disregarded xxxii Unfenced Pits and duty on Proprietor xxxii Parties Trespassing xxxiii Fault held to exclude xxxiii When held not to bar xxxiv When faults on both sides is there division of loss. Lord Justice Clerk Inglis' opinion xxxiv When consequences of Pursuer's fault might by ordinary care be avoided xxxv Passengers injured have claims against Proprietor of vehicle caus- ing injury xxxvi CHAPTEE V. THE RELATIONSHIP OF MASTER AND SERVANT SO AS TO CREATE RESPONSIBILITY. Master liable for Servants in his employment xxxviii Hirer of Horses not liable for negligence of Coachman xxxix Cases of Hackney Coaches and Post Chaises xxxix Owner of Cattle not liable for Drover or his Servant xl Contractor not liable for workmen of a Sub-Contractor xii Owner not liable for Contractor's workmen xlii If work ordered be illegal, employer liable for workmen xliii Owner of a Steamer hired for a time liable for injuries caused by the crew, who were his servants . xliii CHAPTEE VI. OWNERS OP FIXED PROPERTY,' ARE THEY LIABLE FOR INJURIES BY WORKMEN ENGAGED THEREON. If a clear contract with al'i-adesman to do work in the subject not liable xliv Where the work is merely part of the trade or work of the em- ployer, he will be liable xlv TABLE OF CONTENTS. Vll Page Lord Ivory's opinion of such liability xlv Early rule in England of liability xlvi Unless in cases of nuisance or improper use of property, the rule of Bush V. Steinman departed for - - - xlviii, xlix No distinction in the question of liability for fixed and moveable property - xlix General rule in case of Contractors for work, that during the progress owner not liable for workmen's negligence - ^ xlix CHAPTEE VII. LIABILITY ON OWNEES OF PEOPBETT FOE DAMAGE DONE TO OTHEES FEOM THE MODE OF USING, ALTEEING, OE REPAIEING IT. Proprietor bound [to keep his property so as not to injure his neighbour ... . - . i[ Liable for undue hazards and damage to adjoining subjects by insufSciency of his property 11 Landlord not liable for damage to inferior property by negligence of his tenant, there being no fault on Landlord lii Landlord liable if he permit nuisance on his property to injury of neighbour lii Liable for injury caused by insufficiency of subject liii Tradesman liable to his employer for damage caused by his unskilful and improper execution of work liv CHAPTER YIII. LIABILITY OF RAILWAY COMPANIES AND COACH PROPBIBTOES FOE INJUEIES TO PASSENGERS, Company bound to carry with reasonable care liv Proprietors of Stage Coaches on proving sufficiency of Coach not liable for its break-down liv Liable for sufficiency so far as human eye can discern liv Responsible for negligence of Servants - liv Railway Companies in same position Iv Not liable for a pure accident - - Iv On whom is the onus of proof Ivi Company bound to provide against accidents as far as human fore- sight can enable them to do - - Ivi Liable for inattention to " Switches" Ivii In cases of Collision on same line onus lies on Company - - Ivii Is injured party in other cases bound to shew negligence - Ivii TABLE OF COJfTENTS. CHAPTEK IX. LIABILITY OF MAGISTBATES OF BURGHS, TRUSTEES OF TURNPIKE ROADS, HARBOUR TRUSTEES, &0., AND THE TRUST FUNDS. Page Magistrates liable for injuries arising from obstructions in Streets, the duty of preserving the Streets being an obligation on the Corporation - Ivlii Different rule if Streets or Eoads under a Commission Iviii Koad Trustees and Trusts not liable for injuries caused by negli- gence of Officers, Servants, or Contractors lix Harbour Trustees not liable for negligence of Servants Ix Dock Trustees, aware of obstructions in a harbour, and keeping it open to the Public, liable for the damage occasioned Ixi Improvement Commissioners liable for injuries to property caused by defective sewerage, when enabled to reimburse themselves out of the rates for acts done by them in the course of drain- ing authorised by the Statute - Ixi Digest of Decided Cases 1 to 337 Index to Decisions 339 Table of Cases 347 REPARATION FOR mJURIES. CHAPTEE I. LIABILITY OF MASTEES FOE THE NEGLIGENCE DF THEIE SEEVANTS. EvEEYONE is answerable for injuries occasioned by his personal negligence, and by neglect of duty may also render himself liable tocriminal prosecution. ^ He is bound to repair or make up the damage befalling his neighbour from a wrong committed by himself, the general rule of the law being culpa tenet suos auo- tores. The extent of that liability, however, may be a question of circumstances, and is generally left lor the determination of a jury. "The rest of the Court are entirely of opinion (C. B. Pollock) that, generally speaking, where an injury arises from the misconduct of another, the party who is injured has a right to recover from the injuring party for all the consequences of that injury. On the present occasion I entirely concur with the Court that there ought to be no rule, and that the direction was perfectly right. I am, however, disposed not quite to acquiesce to the full extent in the proposition, that a person is responsible for all the possible consequences that may be imagined. I wish to guard against laying down the proposition so universally, but this I am quite clear in, that every person who does a wrong is at least responsible for aU the mischievous consequences that may reasonably be expected to result, under ordinary circum- stances, from such misconduct." ' . It has long been the established law of Scotland and of Eng- land,'that a master is liable to third parties for injury done through iR. V. Lowe, p. 165 ; M'Neill v. Wallace, p. 172. »Per C. B. Pollock in Kigby v. Hewit, Dec, p. 120. b X 'EEPAEATION FOE INJUEIES. the negligence or unskilMness of a servant in his master's em- ploy. There is an implied mandate by a master to his servant for doing all acts within his proper sei-vice. The servant, accord- ingly, is doing what the master, but for the delegation, would have done himself, and every act done by a sen^ant in the course of his duty is consequently regarded as done by the master's orders, and therefore to be the same as if done by the master himself Hence it is settled law, by numerous decisions, that the master is responsible to third parties for the fault of the servant committed within the fair scope of the employment.^ There is no statute qualifying the liability iinposed by the common law on masters for the negligence of servants. The law in England and Scotland is founded on the principle of reason as applicable to the respec- tive relation of the parties. A large portion of the ordinary acts of life are attended with some risk to third parties, and no one has the right to involve others in risk without their consent, and must be liable in the consequences. This consideration is alone sufficient to justify the wisdom of the rule which makes the person by whom or by whose orders these risks are incurred, responsible to others for the consequences resulting from the fault, want of skill, or want of caution of those they employ. On this principle it has been held, that if a coachman driving his master's carriage carelessly along the road, run down a bystander, or drive a cart over a child on the highway — or a gamekeeper employed to kill game, fire so as to shoot a person passing the road ; or a workman employed by a builder in building a house, negligently throw a stone so as to hurt a passer-by : in these and all such cases the person injured can treat the careless act as that of the master, and he will be responsible.^ He is considered, and justly so, as bound to guarantee third parties against all hurt, arising from the careless- ness of himself, or of those acting under his orders — Qui facet per alium facet per se. If a servant is driving his master in a carriage, and a person 1 Brown v. M'Gregor, p. 10 ; Gunn v. Gardner, p., 21 ; Fraser v. Durilop, and Anderson v. Brownlie, p. 28 ; Baird, p. 29 ; M'Laren, p. 42 ; Miller v. Harvie, p. 43 ; Niven v. Hunter, p. 48 ; Sword, p. 61 ; Dansey v. Richardson, p. 185 ; Gray v. Brassey, p. 164 — Per. Lord Iroi-y. ' Per. Lord Chancellor (Cranworth) in Reid v. Bartonshill Coal Company, p. 226. LIABILITY OF MASTEE FOE SEEVANT. XI get up behind, and the servant knowing that drives carelessly and injures him, the servant may be liable, but why is the master to be responsible. " The case of injuries to one workman by the fault or negligence of a fellow-workman will be afterwards referred to (chap iii.) In Scotland the liability of the master has been very strictly enforced. It would be, however, unjust to hold a master respon- sible for acts done by a person who maybe in his service, when the acts are not within the usual line of duty of the servant, or when he has been prohibited by the master from doing them ; and there are cases accordingly, shewing that in such circumstances the master would not be liable. ^ "When the injuiy has arisen from an act which the servant was specially ordered not to do, or which being done without the master's knowledge did not lie within the line of the servant's duties, the master cannot be held bound for the consequences. Thiis the proprietor of a land estate, residing at a distance from it, was held not liable in damages to the widow and children of a person who was killed by the falling of a tree growing on his estate, and which his servants were cutting down without his order, and the cutting of trees not falling within the dine of the servants' duties. ^ If, again, it can be shown that the servant wilfully perpe- trated the offence, or acted criminally, a distinction has been taken ; and, although the servant himself would be respon- sible, the master would not ; * but if the injury should happen through the negligence merely, or unskiUfulness of the ser- vant acting in the line of his duty, the master is liable. This principle may be illustrated by the case of a servant driving a carriage, if he, for some purpose of his own, wantonly strike the horses of another person and cause the accident, the master wiU not be liable. But if, in order to perform his master's orders, he strikes, but injudiciously, and to extricate him from a difficulty, that will be careless and negligent conduct for which the master will be liable, being an act done in pursuance of the 1 B. Bram-vrell in Degg v. Midland Railway Company, 1857, p. 276. 2 M'Kenzie, 183i, p. 47; Lyon, p. 54; Mitchell, 1853, p. 166 ; Lygo, 1854, p. 195. 3 Linwood v. Hawthorn, 1817, p. 12. Fraser, vol. ii., p. 468. « Per I/ord Commissioner in M'Laren v. Rae, p. 42, and in Millar, p. 43; Lord Ivory in Gray v. Brassey, p. 163-4. xii EEPAEATION FOE INJUEIES. servant's employment. Neither hona fides on the part of the master, nor absence from the scene of injury, free him from the responsibility. ^ The master is not liable to punishment when the servant commits a crime, nor for the damage thereby occa- sioned, the servant being alone responsible. If, however, the act is done with the master's knowledge, or by his command, both will be liable.^ It will not, however, necessarily relieve the master that the servant's negligence may infer criminality upon his part amount- ing even to culpable homicide.* A more detailed reference to some of the cases may be of use in bringing out the general prin- ciples of liability. In Lord Keith v. Keir, the servants used fire in clearing the moor — this appeared to have been a common mode of doing such work — and the master was held liable for the damage caused by the incautious manner in which the servants acted.^ This decision was approved of by the late Lord President (Boyle), solely on the ground that the master had authorised the use of iire in the operation.* In M'Kenzie v. M'Leod, decided in England, while the circumstances of the case occurred in Scotland, the principle was well illustrated. There one of the housemaids finding a room to smoke, told the cook that she would cure it by burning furze and straw in the chimney; the cook cautioned her against it, but she persevered, and in consequence the house was burnt down. It was proved that the custom in the district was that carpenters or masons generally cleaned the chimneys, and the housemaid had seen them doing so. G. J. Tindal, told the jury that if they thought the act of the seiTant, in consequence of which the accident had occurred, was done within the general scope of her duty, they should find for the plaintiff ; but if it was not an act within the general scope of her duty, they were bound to find for the defendant. The jury found for the defendant ; and in a motion for a_new trial, the verdict was sustained. B. Alderson in concurring observed, "The words, 'the servant's duty,' may convey several meanings. They may mean cases where the duty is defined by precise orders, or where something is > Croft V. Allison, 1821, p. 25, per Lord Glenlee in Baird, p. 30. Boucher 1 Taun., 568. « Fraser, vol. ii., p. 459-464. 1 Bank, p. 392. ' Per Lord Deas in O'Bryne v. Burn, 1854, p. 202. 9 and 10 Vic. i;. 93. ' Dec. p. 8. " Baird, 1826, p. 30. LIABILITY OP MASTER FOE SERVANT. XIU directed to be done, and the manner of doing it is left wholly in the discretion of the servant, or where the manner of doing it is only partly left in his discretion. In the first case the act of the servant is the act of the master — in the second the judgment exercised, may be considered the judgment of the master, and the master must be responsible. But when he has neither ordered the thing to be done, nor allowed the servant any discre- tion as to the mode of doing it, I cannot see how, in common justice or common sense, the master can be held responsible. To apply this principle was the business of the jury, and I think they have applied it correctly. It was neither the province of this servant to clean the chimney, nor had she received any orders on the subject, but, on the contrary, was cautioned against the course she pursued." Subsequent cases confirm this rule.^ In the various cases of coach accidents, the proprietors have been held liable for the injuries caused by the careless or unskil- ful driving, and the negligent acts of their servants.* Again, in such cases as M'Laren v. Rae, and Miller v. Harvie, the true principles are brought out. In the former, the servant had under his charge two horses and carts, and injury was caused by one of them. The chief commissioner thus stated the case to the jury, " You are to consider the situation of parties, and the point to be made out is negligence, not malevolence. It is not by the issue, whether this is a culpable act of the servant, or whether it was wilful disobedience of orders, or without or be- yond his employment ; but whether the servant did not do what was necessary for the protection of the public ; the act of the servant, to make his master answerable for it, must be in the re- gular course of his duty. The fault must arise from want of skill or attention, and not from a wilful act — a criminal act will not subject the absent and innocent master."* In Millar's case, which was for reparation for the death of a child run over by a horse and cart under the management of a servant — ^it embraced solatium as well as actual loss. The child had been playing on the road. The servant was drunk, sitting on one of the carts with a rein. The same principles were here repeated, there were, however, faults on both sides, and the verdict was for the defen- der. The Commissioner said — " It is established that though I M'Kenuie v. M'Leod, Dec. p. 46-7. " Dec. pp. 20-23. .., , 3 Dec. p. 42. XIV EEPAEATION FOE INJTJEIES. the servant was drunk at the time, he was not habitually so — had he been a habitual drunkard, the master was clearly liable ; but if this was accidental drinking, the master was not on that ground answerable,"^ In the case of Baird, where damages were claimed against a master for injury done to a child through the alleged carelessness of the servant, the master was held liable. It was there pled, that before attaching liability to a master for injuries done ex culpa of his servant, there must be some negligence or blame on the master's part, and that the care- lessness and blame on the part of the child's father in allowing the child to play on the road, barred the action. " There is a great deal in the simple ground that the damage was done when no one was looking after them (the horses), nor is it a sufficient defence of the party to say, ' I hired a servant to attend to it.' The master is liable for the carelessness of the servant. It is essential, however, that the damage should arise from the way and manner of doing the master's work. For suppose a servant takes offence at another man and horsewhips him, though he at the time is condiicting his master's cart, yet the damage is not inflicted in the doing of it, he is acting for himself and the mas- ter is not liable." Lord Glenlee — " The case is distinguishable from that of Linwood, where no orders were given to cut down the tree which caused the injury, and the injury here was caused liy the omission of ordinary caution in performing a duty, while Linwood' s case was a mere casus fortuitus." — Lord Pitmilly ; — and in the same case, the Lord Justice Clerk (Boyle), held that " the master is under a contract to the public to employ competent persons of skill and carefulness, and if he fail he will be liable." 'J'here was no evidence in the case to shew that the servant was either an unfit person to act as driver, or that he had formerly been guilty of negligence."^ In Nivmi or Hunter, the master was held responsible for want of proper precautions by their servant while raising a drawbridge over a canal. There was also rashness on the part of the pursuer, but in the whole circumstances the jury gave dainages.® In Brydon v. Stewart, a full discussion took place as to when a servant should be considered in his master's employment. The ' Dec. p. 43, 4. 2 Dec. p. 30. 3 Dgg p i^^^ LIABILITY OP MASTEE FOE SERVANT. XV Court of Session held, in the circumstances of that case, that the servant was not doing his master's work at the time of the acci- dent ; but, on appeal, the House of Lords reversed the judg- ment,^ A carrier sent his servant with goods in a cart to the city, (of London,) and on his return, a friend of the servant asked him for a drive home. The driver, in doing so, went out of his way, and ran down the plaintiff's wife, and injured her. The Court held no liability on the master, on the ground that the servant was not engaged in his master's business ; that the course of his duty did not take him where the fault, was committed ; and that he had no authority or permission of the master to go where he did.^ On the same principle, the Court nonsuited a plaintiff who claimed damage for injury caused by the break down of a waggon on which the plaintiff was riding. It appeared that the plaintiff had hired a waggon from the defendant to carry goods, but in the course of the journey she got up on the waggon; and it broke down, and caused her injury. The Court held, that while defendant had contracted to carry the plaintiff's goods, there was no contract to carry her person, and he was no party to her getting on the waggon.* There are various specialties affecting the liabilities of em- ployers for their servants, arising from the nature of the employr ment in which they are engaged — as, for instance, when they are serving public trusts or commissions. As to these, and in cases where the question is who. are to be held as the real em- ployer or master of the servants committing the injury, a short reference to the authorities will be found in another place. It may here be said, on the general principle of responsibility on masters for the injuries caused by the fault of their servants, that the decisions seem to rule that it is essential that the ser- vant be at the time acting on his master's business, under his special orders, or within the line of his ordinary duty, and that the injuries arise from the way and mode of doing the master's work, and not from any criminal act of the servant, or wilful or malicious actings, not in the proper course or mode of executing his master's employment. 1 Dec. p. 137. ' Mitchell v. Crasweller, p. 166. ' Lygo. p. 175. xvi EEPAEATION FOE INJUEIBS. CHAPTEE II. MASTEE LIABLE FOE INJUKIBS SUSTAINED BY HIS SEEVANT IN HIS EMPLOYMENT. A master is liable for injuries caused by his neglect towards tbose whom he employs. He is not liable for unavoidable acci- dents, which no human prudence could have foreseen, or against which, with due care, he could not have provided. It has long been the law in England, and it may now also be held to be the law of Scotland, that the servant, when he engages, is understood to take the risk of all faultless accidents incident to the nature of the service ; more especially in work of a hazardous kind.^ Each has a duty to perform. The master is bound to furnish and keep up sufficiency of machinery and materials ; to preserve same in good working order, and have skilful and competent persons for the management and conduct of the work, at least generally held and considered competent for their respective duties, and as to whose capacity for the duty the master has had no reason to distrust.^ He is bound to take all reasonable care, so as to prevent any unnecessary risk to the servant in the dis- charge of his duty, and to provide for the servant's safety, to the best of his judgment, information, and belief^ The servant has no redress against carelessness on his own part, either in the mode of his conducting the work, or in not obeying the proper rules and regulations of the establishment. He is not protected should he go out of the usual mode of working, or engage in services not included in his contract, or which may be prohibited by the master; or if he allow a known defect to continue, whereby injury may be inflicted on himself ; or should the injui-y ' Scrip V. Eastern Counties Eailway, p. 175; Cook v. Bell, 1857, p. 283; Hutchinson, p. 126; Paterson, p. 126; Seymour, p. 128; Priestly, p. 50. ' M'Aulay, p. 93; Whitelaw, p. 112; Ranken v. Neilson, p. 135; Gray v. Brassy, p. 56 ; HiU v. Caledonian Railway Co., p. 203 ; Tarrant v. Webb, p. 252 ; Lynch ». Haggart, p. 273; Cook or Haggart v. Duncan, p. 288; M'Kechnie v. Henderson and Son, p. 306; Brownlee v. M'Aulay, 1860. p. 327. 3 Priestly, Dec, p. 51 ; Muir v. Paterson, 1855, p. 183; O'Bryan v. Bunn, p. 200 ; Tarrant v. Webb, p. 254 ; Vose v. Lancashire and Yorkshire Railway Co., p. 298. MASTEE S LIABILITY TO HIS SEEVANT. XVU result from carelessness, unskilfulness, or rashness on his own part.^ In M'JSfeill v. Wallace & Go., the Lord Justice-Clerk (Hope) said : " This case will then in no degree sanction the inference, that the masters are free from responsibility, merely because some imprudence and rashness have been exhibited on the part of the workmen. Quite the reverse. But here the pursuer ran into a seen danger, when his duty, even to his employer, was not to work." * The servant is not bound to risk his safety in the service of his master where it plainly or reasonably appears that danger or injury will result ; and in such circumstances, if he unduly risks himself, he will have no redress against his master for the in- juries which may arise. It is not meant that every possible or probable cause of danger would justify a servant in refusing to work ; every such case must be determined on its own circum- stances. There are various kinds of service, where risks are to be run as the ordinary nature of the work, such as seamen and others ; but the rule seems to be, that where, in the ordinary- course of an employment, a plain, reasonable cause of danger is apparent, the servant is not boimd to run the risk of personal hazard ; and should he, in such circumstances, unreasonably expose himself to injury, the master will not be held responsible iureparation.* In Alsop v. Yates, a workman was nonsuited for damages, on the ground that he continued to work in the know- ledge of the erections, the defective, nature of which he founded on as the cause of the injury. He had complained of the erec- tion, but still continued to work. " I apprehend there was clearly none (evidence to go to the jury), for a very simple reason, that he himself, after he had complained, continued working there voluntarily, with full knowledge ; and having done so, it seems quite idle to suppose that he can maintain an action against his master in respect of any injury occurring in this way."* It has been decided that the master wiU, in the general case, be freed • Alsop V. Tates, 1858, p. 296 ; M'NeiU v. Wallace and Co., 18.53, p. 168 ; Sutherland v. Monklands Eailway Co., p. 281; Muir v. Patterson, p. 179, J M'NeiU V. Wallace and Co., ut supra. 3 M'Neill «. Wallace, ut supra; Muir or Patterson, 1853, p. 176 ; Priestly v. Fowler, p. 51 ; Lumsden v. Russell and Son, p. 238 ; Wigget v. Fox and Co., 1856, p. 241 ; Cook v. Bell, 1857, p. 283; Sutherland, ut supra. * Alsop V. Yates, p. 297. XVUl EEPAEATION FOE INJUEIES. from responsibility for injuries, by his appointing, with due care and selection, managers or foremen of generally understood skill and competency, and fairly qualified for the due discharge of the duties.^ In the case of coal mines, the master will be responsible for the consequence of any neglect in the inspection, whereby any explosion from fire-damp may take place ; or any defect in the mine, if it be shown that, by ordinary care and due inspection, the danger could have been discovered and averted.^ A master has been held responsible for injuries to a workman, caused by a defective plan or system of blasting rock in a quarry, and this while there was a want of due care on all the men engaged in the operation.^ He has also been held liable for injuries caused by the insufficient state of a scaffolding, which had been erected by men under the instructions of a foreman in his employment, and for the insufficient nature of the materials of which it was constructed.^ In a recent case, the Court sustained the liability of the master for injury to a labourer, through the insufficiency of a scaffolding, along which he was ordered to go in the discharge of his work ; but the Court rested the judgment on the failure of the master to furnish sufficiency of materials and machinery for properly and safely carrying on the work ; holding also, from the proof, the incompetency of the foreman for the proper dis- charge of the duties entrusted to him by the master.' It has been decided in England that the master is not liable for injuries caused by the fall of a scaffolding through unsoundness or deficiency in the wood, whereby a workman met his death. The defendant proved that he was not personally present at the erection, but that it was done by his foreman, who was a man not alleged to have been deficient in skiU, or an improper person to have been employed on the occasion. " The personal presence of the master at the erection would not have rendered him liable, if he had used due and reasonable care in the erection. ' Where a master had provided sufficient machinery and materials for the work, and where the workmen, including the party in- ' 'Wigniore v. Jay, p. 123 ; Tarrant v. Webb, p. 252. •^ M'Neill V. Wallace, p. 172 ; Baird v. Addie and Millar, 1854, p. 187. Walls or Lenaghan, 1857, p. 279 ; Cook v. Bell, ut supra. 2 Sword V. Camei-on, 1836, p. 63. * Cook or Haggart v. Duncan, p. 288. ' Brownlee v. M'Aulay, 1860, p. 327, 8 Wigmore ut supra ; Tarrant v. Webb, ut supra. ' Tarrant u. Webb, ui supra. MASTERS LIABILITY TO HIS SEEVANT. XIX jured, had neglected to use them, wherehy an accident happened, the master was freed from responsibility at the instance of his workmen. ^ In this case the workman also knew the particular mode in which the' apparatus was worked by himself, and he continued without complaint. Tlie carelessness or rashness of a workman has been also held to bar redress against the master, even where there has been fault in the master also ; if the rashness of the servant directly contributed to the mis- chief "With the exercise of ordinary prudence he would have escaped the danger, and his life would have been saved. He knew the rule for testing the rope and tackling every morn- ing, and he knew that the rule was habitually violated; for on the morning of the accident he and the other miners were told by the banksman that they had better examine the rope before they went down. Nevertheless, they disregarded this warning, immediately getting into the cage ; the rope broke as they descended, and they were killed. Under the circumstances of the case, could the deceased, if he had survived, have maintained action against the defendant for what he suffered from the acci- dent? We think that he could not, for, although the negligence of the defendant might have been an answer to the defence, that the accident was chiefly caused by the negligence of a fellow- servant, the negligence of the plaintiff himself, which materially contributed to the accident would, upon well-established princi- ciples, have deprived him of any remedy, volenti nonfit injuria — LoED Campbell, C. J. ^ It is thought that, supposing the master to be able to prove the generally understood character and competency of his servant, the mere fact of the one careless act, whereby the mischief has oc- curred, would not be held evidence of the servant's incompetency for the duties, so as to subject the master in liability. If the contrary was to be held, then the master would in effect be held to warrant the sufficiency and to provide against all danger. This he is not bound to do. ' A man is not versans in illicito if he keep a watch-dog, and he is not liable for the dog injuring a person if he has assured himself of its character. But if he knows that the dog has shown vice, and neglects to give due notice, he is liable. I am not pre- 1 Griffiths V. Gidlaw, 1858, p 314. = Senior b. Ward, p. 319-321. » Tarrant v. Webb, ut supra ; Gray v. Brassy, per Lord Ivory, p. 164. XX REPARATION FOR INJURIES. pared -to hold that the master would be any more liahle if the dog, instead of a stranger, were suddenly to injure one of the servants. ^ The question of injuries caused to servants by the fault of their fellow-servants in the same employment, is afterwards re- ferred to, (chap. iii.). Many questions of difBculty may arise as to whether the ser- vant is actually engaged in doing his master's work, at the time of the injury. In the case of Marshall, both in the Court of Sesr sion, and in the House of Lords, this question was fully gone into. It was a case of damage for injury done to a miner in ascending the pit. The men had gone down in the morning at the usual hour, but when at the bottom had held a meeting, conceiving themselves aggrieved, and they resolved not to work until their grievances were remedied. They appointed a depu- tation to wait on the master to explain their wants. In being drawn up the shaft, one of the workmen met his death, and the question was, whether he was injured in his master's service, in the meaning of the relationship between master and servant, so as to raise liability. The Court in Scotland held that he was not ; but, on appeal, the House of Lords reversed the judgment. In pronouncing judgment. Lord Chancellor Cranworth explains it thus : — ' I quite adopt the argument of the Solicitor General, that the master is only responsible while the servant is engaged in his employment, but then we must take a great latitude in the construction of what is being engaged in his employ. It would be a monstrous proposition indeed, if, having sent a work- man down into my mine to work for me, and he then choosing no longer to be emploj'^ed, requires me to take him up again, that the taking up should be held to be taking him up. without my being liable for the due caution for which I was liable when I let him down. That is not the meaning of the law. If, having taken him up, I afterwards dismiss him, or he remains in my employ, and means to come down to-morrow into the mine again, and in the interval he does something not in the course of his employment, the master is not by the law of Scotland, or by the law of England, responsible for it ; but whatever he does in the course of his employment, according to the fair interpre- • Lord Ivory in Brassy, p. 164. MASTEE S LIABILITY TO HIS SEEVANT. XXI tation of the words eundo morundo et redeundo, for all that the master is responsible ; and it does not, in iny opinion, make the slightest difference that the workmen had, according to the finding of the jury, no lawful excuse for not going on — no proper excuse for leaving their work." ^ CHAPTER HI. IS THE MASTEE LIABLE FOE IHTJUEIES SUSTAINED BY ONE SEEVANT THEOUGH THE FAULT OE NEGLIGENCE OF ANOTHEE? — WHAT IS COMMON EMPLOYMENT? Assuming the law to be, generally, that a master is liable to strangers for injuries caused by the fault or negligence of his servant, is he so liable when the sufferer is in his employment, and a fellow-workman with the party causing the mischief? In Scotland this question has given rise to much and anxious consideration, and in practice there is as yet no very clear rule on the point. In the earliercases the special question had not been raised ; but it would rather appear that this circumstance created no exception to the master's general liability. The question was referred to in the case of Sword ; but that decision has been sup- ported more properly on the ground of a continued defective system of blasting, known to the master, and thus raising his liability, by not providing for the due safety of the men, and exposing them to unnecessary risks.^ In Rankine v. Dixon the point was also raised, and Lord Justice-Clerk Hope, on a review of the authorities, ruled that there was no such distinction acknow- ledged in the law of Scotland. This opinion, however, does not appear to have been universally concurred in by our Judges, and in that case Lord Medwyn reserved his opinion on this point.^ In the case of Brassey it was again considered ; but the case was mixed up with other circumstances, and no specific judgment on ' Brydon or Marshall v. Stewart, &c., 1852-5. Dec. p. 137. « Sword V. Cameron, 1839, p. 63. ' Rankine or Neilson, «. Dixon, p. 130-135. xxii EEPAEATION OF INJURIES. the point was given. The remarks, however, of the Lord Presi- dent and Lord Ivory, show that the Court did not assume it as an absolute rule, that the master was in all cases liable for injury caused to a servant by the fault or negligence of a fellow-workman. They appeared rather to admit an exception in the case of serv- ants engaged in a common employment ; but that the difficulty seemed rather to be what was to be held as " common employ - ment," so as to affect the general liability.-' " If by repelling that plea it is meant, that if a master, in the choice of his servants or machinery, is altogether free from blame, he may still be liable for injury done, I can only say that I am not inclined to hold that : I rather agree with the views expressed by Lord Macken- zie in Sneddon v. Adie and Millar. That was a case of machi- nery ; and Lord Mackenzie said, — ' If the master had done every- thing he could to ensure sufficiency, I think there would be great difficulty in holding him liable. I think there must be some culpa, however small. The principle cannot go very far, and the presumption undoubtedly is, that there was blame.' If that is sound as regards machinery — if, from some latent fault in ma- chinery, which the master has taken every possible pains to secure against, injury happens, the master is not liable — then, as I read our law, the same principle applies in the case of servants: If the master has done everything in his power to have proper servants, skilled in their department, such as that no prudence on his part could possibly have done more to guard against irregu- larities in their after conduct, then I am not prepared to say he would be liable.'"^ In a subsequent case, however, in the Second Division, the rule was laid down, that there was no distinction in the general liability in such cases. It was so assumed in Paterson v. Wal- lace, and repeated in that of M'Naughton, as follows : — " I go on this broad principle, that since the employer is liable to third parties for tEe injuries sustained by them, he is, d fortiori, liable for those sustained by his own servants. The defenders say the general policy of the law is otherwise — I do not agree with that" (Justice-Clerk Hope).* The general plea of non-liability for in- juries caused by a fellow-workman was thus disposed of by Lord Cowan : " It is in terms the very plea urged in the case of ' Gray v. Brassey, p. 156. ' Lord Ivory in Gray v. Brassey, p. 163. ^ Muir or Paterson v. Wallace, Dec, p. 176 ; M'Naughton v. Caledonian Kailway Co., p. 260-263. WHEN CAUSED BY FELLOW-SEEVANTS. XXIU Brassey, and is, in the words of Lord FuUerton in that case, " general, absolute, and unqualified." This is not the first time the point has occurred, or that the general question of a master's liability for injury done by one servant to another has been be- fore us. It was before me as Lord Ordinary in Gray v Brassey, prior to the decision in Rankine, in this Division of the Court. It was dealt with in that case as the first attempt to introduce a principle from the law of England not hitherto recognised in the decisions of the Scotch Courts : as siich I reported it to the First Division, in order that an authoritative decision might be pro- nounced. In the meantime Rankine v. Dixon had been decided, in which this very defence was repelled, so that there remained with me no difficulty in repelling the plea in Brassey' s case ; and their Lordships of the First Division adhered to the decision." His Lordship is here speaking of the general plea of non-liability — he reserved consideration of special cases.^ So stood the decisions in Scotland until the judgment of the House of Lords in the Bartonshill cases. In England the general principle had been long settled, and seems to have been that a master is not in general liable for in- juries sustained in consequence of the negligence of a fellow- servant acting in his master's employment, but the master would be liable if the servant, guilty of negligence, was not a person of ordinary skill and care. In Priestly v. Fowler, there being no former precedent, the Court of Exchequer, through Lord Abinger, reasoning from the general principles of the law, held that no such liability attached — that the relation of master and servant could not imply an obligation on the part of the master to take more care of the servant than he might reasonably be expected to take care of himself, although he was bound to provide for the safety of his servant, , in the course of his employment, to the best of his judgment, information, and belief The servant was not bound to risk his safety in the service of the master, and might, if. he thought fit, decline any service in which he might reasonably apprehend injury to himself (Laison v. Kirk — Lane's Eeport, p. 67), that to allow such sort of actions to prevail would be an encouragement to the servant to omit that diligence and caution which he was in duty bound to exercise in behalf of his master.'' The case oi Hutchinson followed on the same principle, > M'Naughton's case ut supra. ^ Priestly v. Fowler, 1837, Dec, p. 50, 51. xxiv EEPAEATION FOE INJUEIES. and no liability was held to attach. The circumstances were somewhat different, but the Court adhered to the general prin- ciple of Priestly. They held that there was no real distinction in the case by the fact that the negligence which caused the acci- dent occurred on the part of the railway servants in the charge of the other train causing the collision, holding " that a servant when he engages to serve a master, undertakes as between him- self and the master to run all the the ordinary risks of the service, and this includes the risk of negligence upon the part of a feUow- servant, when he is acting in the discharge of his duty as servant to him who is the common master of both." In this case the Court expressed an opinion that the master would not be exempt from liability to his servant for any injury occasioned to him by the act of another servant, when the servant injured was not at the time of the injury acting in the service of his master. ^ In Wigmore v. Jay, the same decision was pronounced. The injury was caused by a scaffolding giving way, and the Court held that as the defendant's foreman, who had been entrusted with the erection of the scaffold, was not alleged to have been a person deficient in skill, or an improper person to have been employed on the occasion, no liability could attach to the em- ployer, and that there was no fault on his part. ^ In Tarrant v. Wehh, after a review of the prior authorities, the rule was con- firmed : the master was freed as he did his best to employ com- petent servants — C. J. Jervis observing, "it is not that the master must warrant the competency of the persons whom he employs, but he must take care to select for the work persons who are competent." It would appear from the decision that the servant must prove negligence against the master before such liability can attach. * In Wigget v. Fox, the rule was applied, and it was ex- tended to aU the workmen engaged in a general undertaking, notwithstanding they may be in the service or employment of sub-contractors for any departments of the work. * So also in Begg v. The Midland Railway Company, when a party volun- teered his assistance to the railway servants in turning an engine, and was killed by the carelessness of other servants of the com- pany, the Court held that, had he been a servant of the Company 1 Hutchinson v. York, Newcastle, and Berwick Railway Co., 1850, p. 122-124. 2 Wigmore v. Jay, p. 121. ' « Tarrant, v. Webb, p. 252. • Wigget V. Fox, &c., p. 241. WHEN CATTSBD BY FELLOW- SEEVANTS. XXV no liability would have lain, and, " although: he was not in their employment, he having of his own accord, and unknown to them, assisted their servants, he must be held to be in the same position in the question, as if he had been a servant."^ In Griffiths V. Oidlaw, and in Yose v. The Lancashire and Yorkshire JRaU- way Company, the principle was confirmed .•™" I think (says 0. B. Pollock), we ought to be extremely cautious how we relax the rule that was laid down in this Court originally, but which is now, undoubtedly, the law of the land, with respect to servants in a common employment suffering by the negligence of each other. I believe there never was a more useful decision, or one of greater practical and social importance in the whole history of the law. 1 believe it was the law — I strongly understood it to be so, before attention was called to it, for if it had not been so, we could hardly have lived in the present century without having . actions brought over and over again. No such action ever had been brought before the time when it was proposed to make a master liable in respect of one servant for the negligence of another. I think we ought to be exceedingly cautious how we allow what, I must aay I consider to be the important benefits of that decision, to be frittered away by nice distinctions, or to be broken in upon by the ingenuity of advocates, or by the verdict even of juries." * In Senior v. Ward, Lord Campbell, in the Queen's Bench, held the law on the point to be settled in both countries.* There seemed to be no good reason for any difference in the laws of England and of Scotland on this point, and the appeal in the Bartonshill cases raised the question. It was put in the House of Lords in this way:— "In the working of a mine, if one of the servants employed is killed or injured by the negligence of another servant employed in some common work, that other servant having been a competent workman, and properly em- ployed to discharge the duties entrusted to him, whether the common employers of both are responsible to the servant who is injured, or to his repreaentajtavea, fcr the loss ocoasioji^d by the negligencs of the other ?" At the trial in Scotland, the Lcffd President ruled to the jury that if they were satisfied on the evideruee that the injury was • Deggu. Midland Railway Company, p. 275. • Vose, 18th Jan., 1858, p. 298. Griffiths, v. Gidlaw, Dec, p. 320, 1. » Senior v. Ward, p. S20. C XX-vi EBPAEATION FOE INJUEIES caused by culpable negligence and fault on the part of Shearer, in the management of the machinery, the defenders, his masters, were in law answerable. To this charge it was excepted on behalf of the defenders, who requested the judges to direct the jury in point of law, that if the jury were satisfied on the evidence that the defenders used due and reasonable diligence and care in the selection and appointment of Shearer as engineman, and that Shearer was fuUy qualified to perform the duties of engineman, and furnished with proper machinery and aU necessary means for the performance of the duties, then the defenders were not in law answerable for the personal fault or negligence of Shearer in the management of the machinery. This direction was de- clined.i Prom the decision of the House it is presumed that the exception ought to have been sustained, and that now to this extent the law both of England and Scotland is the same. From what has fallen from the judges in several cases it is doubtful whether there reaUy was ever any great difference in the law of the countries on this subject. The Lord Chancellor came to this result on a review of all the authorities. His own opinion did not materially differ from the views of the Lord President and Lord Ivory in the case oiBrassey, observing that, with a trifling exception, these agreed with the law as laid down by the Court of Exchequer in Hutchinson — ^the real difficulty being what is to be regarded as common service.^ It is, however, un- deniable that the practice in Scotland had been otherwise, more especially in recent cases. The whole law on the point was very fully brought out in the Bartonshill cases, and the Lord Chan- cellor (Chelmsford), holding that the relation in which Shearer stood to the deceased would satisfy the strictest definition of the term of parties engaged in a common employment, thus pro- ceeds : — "If this case had arisen in England, it would be unneces- sary to do more than refer to the different decisions upon that subject, in which, founded as they are on reasons which recom- mend themselves to the judgment, your Lordships would pro- bably have acquiesced. But it is said that, whatever may be the law of England, which has only recently broken in on the prin- ciple of the liability of the master for the negligence of his ser- vants, there is no such law existing in Scotland. I own I was surprised to hear the assertion made, because I had assumed that 1 Clark or Beid, v. Bartonshill Coal Company, p. 225. ' Dec, p. 232. "WHEN CAUSED BY FELLOW-SERVANTS. XXVll the authorities in England had been based upon principles which were not of local application, nor peculiar to any one system of jurisprudence. The decisions upon the subject in both countries are of recent date. But the law cannot be considered to be so. The principles upon which these decisions depend must have been lying deep in each system, ready to be applied when the occasion called them forth. It wiU be unnecessary for me, after the complete and satisfactory manner in which my noble and learned friend has investigated the cases which have been de- cided in the Scotch Courts, to follow minutely in the same course, and to shew that all of them are reconcileable with the decisions in England, and that, with the exception of occasional dicta of some of the Scotch Judges, there is nothing in them to shew that there is any real difference in the law of the two countries." ^ Holding, therefore, that the general principle is now at least the same in both countries, the real difficulty in such cases will come truly to turn on what is common employment, and who are to be considered as fellow-servants in the meaning of the rule. In practice, since the decision in the BartonsMll case, this point has occasioned considerable difficulty. In a very able note in M'Naughtons case, Lord Ardmillan brings out many anomalies connected with the question, having regard to the multifarious undertakings in operation in this country, and varied and distinct departments into which many large establishments are divided. Beyond what has been laid down by the decisions in both countries, much must be left to depend on the special circumstances of every case. " It may be," says Lord Ardmillan, " that the persons, though servants of the same master, stand in regard to each other in the relation of superior and subordinate. Both are indeed servants, but they are not on the same level, for superintendence is intrusted to the one, and in superintending he is doing the duty and acting as the representative of the master. In such a case the Lord Ordinary is of opinion that, for the fault of the servant having such superintendence, the master is and ought to be responsible ; and in the case of Paterson v. Wallace in the House of Lords, the master's liability, where there is blame on the part of a servant charged with direction and superintend- ence, was recognised.^" In the House of Lords, the decision in O'Bryne v. Burn was ' M'Guire v. The Bartonshill Coal Company, p. 235. ' JJ'Kaughton, p. 262. XXVlll EEPAEATION FOE INJUEIES approved of in the special circumstances of tlie girl's youth and inexperience, and as she seemed to be placed under the control and perhaps protection of an overseer appointed by the master, and intrusted with this duty.^ The case of M'Naughton, it was stated, " may also be sustained without conflicting with the Eng- lish authorities, on the ground that the workmen in that case were engaged in totally different departments of work. The deceased being a joiner or carpeijter, who, at the time of the accident, was engaged in repairing a railway carriage, and the persons by whose negligence his death was occasioned were the engine-driver and the person who arranged the switches." ^ " When several workmen engage to serve a master in a common work, they know, or ought to know, the risks to which they are ejcppsing themselves, including those risks of carelessness against which their employers cannot secure them, and they must be supposed to contract with reference to such risks. I do not at all question what was said by the Lord President, that the real question in general is, what is common work ? It is not necessary for this purpose that the workman causing, and the workman sustaining, the injury, should both be engaged in performing the same or similar acts. The driver and guard of a stage coach, the steersman and rower of a boat, the workman who draws the red-hot iron from the forge and those who afterwards hammer it into shape, the engineman and the sig- nalman on a railway, are all engaged in one common work. So in this case as to the engineman and the miners, they are all con- tributing directly to the common object of their employer in bringing the coals to the surface."* In Stirling or Ear die v. Addie, the Court held that the rela- tion of the deceased with the foreman or underground manager of the work did not bring it under the rule so as to form an ex- ception to the master's liability.* In the case of Lennan v. Addie, tried at the same time, and similar in its circumstances, the same judgment was pronounced by the Court of Session, but on an appeal, the House of Lords reversed the judgment.* The most recent case is that of Brownlie. There the First Division held the master liable. The decision is put, however, not solely • Bartonshill case, p. 23. ' M'Guire v. Bartonshill Co. p. 236-7, per Lord Chelmsford. ^ Lord Cranworth, p. 232. » Dec. p 301-3 • Lennan v. Addie and Miller, July 1859, Dec. p. 325. WHEN CAUSED BY FELLOW-SEEVANTS. XXIX on the ground that a master is liable for the injuries caused to his workmen through the fault or negligence of the foreman, as being distinguishable from the case of an ordinary workman, but is combined with the finding, that the master failed in his duty to the servant in not providing sufficient machinery or scaffolding for their due safety and protection. " The present case appears to me not to fall within the judgment of the Bartons- hUl case« In the first place, one cause of the injury was the im- perfection of the machinery or scaffolding provided on the occa- sion. I do not understand the judgment of the House of Lords to have proceeded on this — ^that a person who carries on works of this kind, and who is bound to provide proper machinery for his workmen, is not responsible for the cousequences which may ensue from the machinery being imperfect in extent or quality, or insecure in point of construction. I further think the judg- ment in the BaHonshill case has not decided what the House of Lords may yet decide — ^that when a person who carries on a trade of such a kind that he cannot be personally present, and in which he delegates to a foreman his authority to superintend the opera- tions and control the workmen, that the person placed in that position is a fellow-labourer." " The case might have been made to depend somewhat on this, whether the person placed in the position of a foreman, was a person of known skill, character, and prudence. If the master had proved that he had engaged an experienced workman to be his foreman, an anxious, skilful, and prudent man — it might have been said perhaps that he had then discharged his duties as far as the circumstances of the case permit, I do not know how that would be. But in this case we have no evidence on the subject. We have no evidence save one act presented to us in this case, that of ordering the men forward when he was told the scaffold was insecure, which certainly in- dicates great negligence on his part. If it was left to us to make any inference on the subject, I should certainly think he was not a competent person."^ Lord Deas, in referring to the case of Wigmore and the law of England, says — " I am satisfied that a foreman placed in the situation which this person held cannot be called a coUaborateur in the sense in which that term has been used, both in this country and in England. In the case of Wigmore the distinction does not seem to have been taken be- J Lord President in Brownlie v. Macaulay, 1860, p. 327, 330. XXX EEPAEATION FOE INJUEIES tween the foreman and the rest of the men employed to put up the scaffold. But I cannot find any trace of its ever havihg been decided in England, and it certainly never was decided in Scot- land, that a person employed in the circumstances of this j)erson, is to be held a coUaborateur, so as to free the master from the consequences of his negligence." ^ • Such are the decisions on the point. If the general rule of the law of England be assumed, that the servant agrees to under- take all ordinary and usual risks of the service, it might be fairly contended that he had in view the different grades of workmen employed in the common service, and that he undertook the ser- vice aware of his being subject to injury, as well from accidents that cannot be guarded against, as from the neglect on the part of those who are engaged with him in the common employ-- ment, and unless there is negligence or fault shewn against the master, it would rather seem, judging from the English deci- sions, and the views of several of the Judges in Scotland, that ui the general case he will not be liable for the injury. CHAPTEE IV. WHEN THEEE IS FAULT ON THE PAET OP THE PEESON INJUEED, AND ON BOTH SIDES. Assuming that there is fault on the part of the defender, what degree of fault on the part of the person injured is sufficient to bar a claim for damages ? In practice, this question has been attended with great difficulty. Every case will depend very much on its own circumstances, and it may often become a question for the jury to determine. But, having reference to the decided cases, it may be stated generally that the claim wiU be barred, if it is found that the fault or negligence directly con- tributed to the accident. Great care is necessary in libelling actions of this kind, so as to bring the statement on the record up to a relevant issue in regard to the fault, or degree of fault or negligence, attributed to the parties, and on which it is to be ' Brownlie, ut supra. PATJI.T ON BOTH PARTIES. XXXX maintamed that the fault, if any, of the pursuer has been im- material. Under the general issue, whether injury has been sustained by the fault of the defender, it has been held to imply an allegation that the whole fault was with the defender, and consequently, that the pursuer had not only to prove injury, but also that the injury was occasioned solely by the fault of the defender.^ Although it cannot be said that there is any fixed rule to regulate the class of cases where a party can recover, although there may be admitted fault of some kind on his part, the fault to preclude must be one directly conducing to the accident by which it was partly caused ; that is to say, that the act or neglect of both parties, or the separate faults or omissions, directly contributed or concurred in, giving rise to the calamity. " I have already observed, that it is not every neglect or fault by the injured party that will prevent the recovery of damages ; . nor does such a result necessarily follow, even although, without the fault of the injured party, the accident would not have hap- pened. It might be so, and yet the defenders may be respon- sible in damages, because the fault may, nevertheless, not be such in its character as to form a cause contributing to the injury." ^ It is not sufficient to disentitle to, damages that a pursuer has been doing something which, strictly, he ought not to have done, and without which having been done the injury might not have occurred ; it must not merely be remotely connected with it, for in that case it is not to be considered as contributing to the injury, and within the principle of fault sufficient to debar the recovery of damages. Such, however, may be a circumstance in asse83- ing the amount. ^ In the case of Greenland, which was an injury from a collision in the Thames, the injury was caused by the anchor of the steamer in which the plaintiff was falling on plaintiff, in consequence of the shock, whereby his leg was broken. It was stated, in defence, by the owner of the other steamer, that the anchor was improperly stowed, and further, that the plaintiff was in a place of the vessel where he ought not to have been ; and but for these circumstances, the collision would not have • M'Naughton v. Caledonian Railway, and in Clyde Shipping Company, p. 271- 2 Lord Wood, in M'Naughton's Case. Dec. p. 270. » M'Naughton, p. 268-9. Miller v. Harvey, p. 44. M'Neill ^^. Wallace, p. 168. TuflF V. Warman, p. 276. XXXii EEPABATION FOE INJUEIES. injured the plaintiff. " I entirely concur with the rest of the Court, that the man who is guilty of a wrong, who thereby pro- duces mischief to another, has no right to say, ' part of that mischief would not have arisen if you had not been yourself guilty of some negligence ;' and I think that, when the negli- gence did not in any degree contribute to the immediate cause of the accident, negligence ought not to be set up as an answer to the action." — C. B. Pollock.* The cases of this nature which have occurred in Scotland, have been generally in conne^don with persons falling into un- fenced pits, and subjected to injury by slight faiilts on their own part, such as deviating slightly from the open or public road, and such like. This species of fault has been disregarded as immaterial to the real negligence conducing to the calamity. It will be necessary, however, to examine the special circumstances of these cases ; but, generally speaking, the Court held that the duty of a proprietor or tenant in a frequented place is to fence such pits and dangerous places, so as to afford protection to the public from the danger. What, however, wiU be a proper fence, may be a question of circumstances.^ In England, the law on this point may be found in the recent case of Hardcastle. " When an excavation is made adjoining to a public way, so that a person walking on it might, by making a false step, or being affected with sudden giddiness, or in the case of a horse or carriage, who might, by the sudden starting of the horse, be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences ; but when the excavation is made at some distance from the way, and the person falling into it would be a trespasser upon the defendant's land before he reached it, the case seems to me to be different."- — B. Maetin. And again, on the question of re- sponsibility for fences, his Lordship, expressing the opinion of the Court, says : " When a man dedicates a way to the public, there does not seem any just grounds, in reason and good sense, that he should restrict himself in the use of his land adjoining to any extent, further than that he should not make the use of ' Greenland v. Chaplin, Dec. p. 119-20. * lunes, p. 1. Black v. Caddell, p. 6. Chapman v. Parlane, p. 29. Allan and Simpson v. Mack, p. 45. Aitken, p. 50. !Fraser v. Dunlop, p. 28. Hislop v. Durham, p. 77. FAULT ON BOTH PAETIES. XXXIU the way dangerous to the persons who are upon it, and using it. To do so would be derogating from his grant, but he gives no liberty or licence to the persons using the way to trespass upon his land ; and if, in so doing, they come to misfortune, we think they must bear it, and the owner of the land is not responsible. If fences are to be put up, it would seem more reasonable they should be put up by those who use the way, or those who are under the obligation- to repair it, than by the person who dedi- cates it to the public"! In the late case of Balfour, in the Court of Session, two boys had been near a canal basin where there was no public thoroughfare, and one of them having wandered along the banks, and among some piles of wood there stored, and was killed by the falling of the wood, the Court assoilzied the owners of the wood, in respect the boy had no right to be there. The same principle had previously been declared in Davidson V. The MoTiMands Railway Company, where a child three years old had been drowned in the lade near the Forth and Clyde Canal, and although there was no fence along the canal at the spot, it had been in the same state when the child's parents came to reside in the neighbourhood ; and in respect, also, of there being no thoroughfare, the defenders were assoilzied.^ In Paterson v. Wallace, Lord Justice-Clerk Hope, in with- drawing the case from the jury, being of opinion that the facts proved at the trial were sufficient to show such fault. on the pur- suer as to preclude him from recovery, said : " We have had occasion to lay down the doctrine, that mere rashness on the part of the workman in trusting too long to the existing state of things, will not exclude a claim for reparation, if the employer has neglected his duty in not timeously providing for the safety of the men. But then the facts here, if my view of them is correct, raise a very different question, and bring in the fault of the man injured as the true cause of the injury." In the House of Lords, it was considered to be a question of evidence, and that the judge ought not to have taken the case from the jury ; but on the merits as to the evidence that the fault of the pursuer truly contributed to the injury, the Lord Chancellor agreed in ' Hardcastle v. Soutli Yorkshire Railway Co. 1859, p. 321. ' Balfour v. Baird, &c. Dec. 1857, p, 289. Davidson v. Monklands Railway Co., p. 217. xxxiv EEPAEATIOK FOE INJUEIES. the conclusion arrived at by the Lord Justice-Clerk, but a new trial was ordered. In the case of Niven or Hwnter, a claim for injury sustained at crossing a drawbridge on the Union Canal at Edinburgh, there seemed to have been a degree of carelessness or fault on both parties ; but the Lord President (Hope) left it to the jury thus : " It is now for you to say if there was in any way fault or negligence in the management of the bridge by Cuninghame. I think he was to blame, yet, at the same time, I certainly think the woman was in fault also, though no doubt allowance must be made for the agitation and confusion into which she was thrown. In these circumstances, you must con- sider if this is a case for damages ; and if so, what is to be the amount." The jury gave ^500.^ In M'Neill v. Wallace & Go. (p. 170), there was a failure on the part of the masters to have props at the pit-mouth, but the Court held that the fault was only, in the circumstances, a secondary one, and only justifying the men to decline to work in the pits ; and as they did go on with work without the props, and sus- tained injury, no claim for recompense lay against the master. In cases where injury is inflicted upon one person only, but occasioned through the joint fault of both, is the whole loss to fall upon one side ? In M'Raughton's case this question was necessarily raised, but the Court held that it was not pleadable under the special issue as there adjusted. The observations of the judges, it seems, had been rather misunderstood ; and accor- dingly, ia a subsequent case, the Lord Justice-Clerk, in the course of his remarks, referred to the subject, and said : " Now the case, which I said could not be raised under the issue in M'NaugMon's case, was not a division of loss, as in a collision of ships, but that which the pursuer did suggest in argument — viz., that any loss sustained by the defenders should be deducted from the loss sustained by the pursuer,, and that the pursuer should be entitled to the balance. I certainly did not intend to give any countenance to such a claim in law, but I said that such a claim, (and not a claim for a division of loss,) if it could be maintained in law, must be raised under a different issue." ^ In Greenland v. Chaplin, C B> Pollock says: "I am not 1 Niven or Hunter v. Edinburgh and Glasgow Canal Co., 1836, p. 48. See also Miller v. Road Trustees, p. 44. Miller v. Harvie, p. 43. ' Clyde Shipping Co., June 18.59, p. 271, per. Lord Justice Clerk Inglis. FAULT ON BOTH PARTIES. XXXV aware that, according to any decision that has ever occurred, the jury are to take the consequences, and decide them in pro- portion according to the negligence of the one or of the other party." 1 In England it has also been held, that damages cannot be re- covered in respect of an injury to the person, when the fault of the party injured had directly contributed to the result." There is also a class of cases to the effect, that where the party injured by the negligence of another has himself been at fault, if re- motely connected with the occurrence, may nevertheless recover damages, if, by the exercise of due and reasonable care, the de- fendant might have avoided the consequences of the plaintiff's negligence. In Davis v. Mann, the plaintiff had fettered the fore-feet of an ass, and turned it on the highway to graze on the road-side. The defendant's servants in charge of a waggon, in passing, killed the ass. It appeared that the horses were going at a smart pace, and the driver a little behind. The defence there was that the plaintiff was in fault in fettering the animal in a public highway, and but for that the accident would not have happened. The Court gave damages. "The defendant might, with proper care, have avoided injuring the animal, and did not ; he 'is therefore liable for the consequences of his negligence, though the animal may have been improperly there." — Loed Abingee. In concurring in the judgment, B. Parke said : " Were this not so, a man might justify the driving over goods left on the public road, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road." ^ In Righy v. Hewit, where a passenger on an onlnibus sustained injury being thrown off by a coUison with another omnibus, it appeared that the vehicles were being driven at a furious rate, and while the defendant's omnibus was endeavouring to avoid a cart in the way, it came in contact with the omnibus on which the plaintiff was seated, and threw him to the ground. Both vehicles were driven improperly, and whereby in a measure the accident was caused. The Judge ruled that such circum- stance was no bar to recovery by the plaintiff, and this direction was confirmed by the Court.* > Dec. p. 120.' « Senior v. Ward, p. 321. "Waite, p. 311. Tuff, p. 276. » Dayis v. Mann, p. 83. * Rigby v. Hewit, p. 120. XXXVl REPAEATION FOE INJURIES In Bridge v. The Otand Junction Railway Go. the defence was, that the collision was occasioned by the carelessness of the servants of the company, in whose carriage the plaintiff was travelling, and but for that, with the plaintiff's own negli- gence, the collision would not have occurred. The plea was held bad—" It is consistent with aR the facts stated in it, that the plaintiff (or they under whose guidance he was) was guilty of negligence, and the defendants also, and yet the plaintiff is en- titled to recover. Can it be said that, because a carriage is on the wrong side of the road, a party is excused who drives against it. It ought to have been shewn that there was negligence in not avoiding the consequences of the defendant's fault. The principle is clearly stated by Lord Ellenborough and J. Bayley in Butterfield v. Forrester, and that rule is, that although there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the con- sequences of the defendant's negligence, he is entitled to recover ; if by ordinary care he might have avoided, then he is the author of his own wrong." B. Parke. ^ In Waite the defendants were assoilzied, in respect of negli- gence in the plaintiffs, or those in whose charge the child was, in carelessly crossing the rails when a train was approaching — there appeared also to be fault on the defendants' servants. " The jury must be taken to have found that the grandmother of the plaintiff, in whose care he was when the accident happened, was guilty of negligence, without which the accident would not have happened ; and that notwithstanding the negligence of the defendants, if she had acted on this occasion with ordinary care and prudence, neither she herself nor the infant would have suf- fered" Lord Campbell*— In the recent case of Senior in Queen's Bench, this doctrine was strongly illustrated. There was serious fault on the part of the defendant, but the deceased workman was also in fault in disregarding the rule at the work, and having himself directly contributed to the accident, no claim for da^ mages was sustained.* Besides the cases quoted, the case of Clayards is to the ' Bridge v. The Grand Junction Railway Co., p. 52. Tuff v. Wannan, p. 277. " Waite V. Nortli Eastern Railway Co., p. 313. * Senior v. Ward, 1859, p. 320. FAULT ON BOTH PAETIES. XXXvii same effect, where commissioners of sewers had opened a dan- gerous track in the outlet to a meuse, and a cabman while attempting to lead a horse out, the animal fell in, and was killed. The question was raised, whether there was rashness in the plaintiff so as to preclude him from recovering. The jury found for the plaintiff, and a rule for a new trial was discharged. Justice Patteson observing, " The whole question was, whether the daur ger was so obvious that the plaintiff could not in common pru- dence make the attempt,"^ Again in Tuff, " If the defendant was not negligent, or if the plaintiff directly contributed to the accident, you should find for the defendant, and if the defendant directly caused the accident, you should find for the plaintiff," Justice Wyles ; and on a motion for a new trial, the Court ap- proved of the direction, " The question is, the accident having occurred by the negligence of the defendants, whether the plaintiff's negligence has contributed directly to the mischief?" C. J. COCKBUEN.2 On the law of fault as it at present stands on the decided cases, the rule seems to be the same in both countries ; and having regard to the special rule in such cases as Tuff v. War- man ; and DoweU 26 L. J. (Q. B., p. 59), the law may be taken generally to be as stated by the Lord Justice Clerk Inglis in the case of M'Naughton, subsequently confirmed by the Court of Queen's Bench in Senior v. Ward in 1859-—" I arrive then, without any serious difficulty in principle, at the conclusion, that when an event is brought about directly by the culpa of two persons, whether joint or several, where the cul/pa of each has contributed to produce the event, and the event would not have been pro- duced but for the culpa of both, there can be no claim as be- tween these peisons for reparation of injury flowing from that event." ^ > Clayards v. Dethicfc, 4 Q. B. 449. « TuiFw. Warman, p. 277. ' M'NKUgliton, p. 247. XXXVm EEPAEATION FOE INJUEIES. CHAPTER V. THE EELATIONSHIP OP MASTEE AND SEEVANT SO AS TO CEEATE LIABILITY ON EMPLOYEES. A master is held bound to see that his servants are acting properly, and is consequently liable to the public for their fault and negligence while in his employment. In many cases, how- ever, the difficulty has arisen who is to be held the master or employer, so as to be liable for the fault of the workman. It is held that there is no relationship between a proprietor and a contractor as of master and servant in this sense, and that the principle of liability of one for the acts of another must rest on the implied mandate and authority created in the contract of service.^ The question of the liability of proprietors of heritable sub- jects for damage done in connection with the property will be afterwards referred to.^ This question of master and servant has undergone much discussion in England, and in the case of Laugher v. Pointer, the principles of such liability were fuUy considered. The question there was, whose servant was the coachman by whose negligence the injury was occasioned. The defendant, keeping his own carriage, hired of a stable-keeper a pair of horses for the day. The stable-keeper sent the horses, and a person to drive them. The driver had no wages from his master, but depended on receiving a gratuity for his day's work. Chief Justice Abbot directed a non-suit on the ground that the driver was not the servant of the defendant. The case was sub- sequently argued before the Judges, and as they differed in opinion, the rule was discharged. It was contended on the one side that the driver was not the defendant's servant ; if he had he would have been entitled to demand his wages. If the rela- tion of master and servant existed in the case, why should it not be also between the hirer of post-horses for a stage and the driver, or between the hirer of a hackney coach and the coach- man. When horses are let for the day the owner is liable for accidents produced by the misconduct of the driver. It ' Chap, vi., and authorities there quoted. s Chap. vii. LIABILITY ON EMPLOYEES. XXXIX would be said there is a difference between hiring for a stage or for a day, that is between a hiring for a space or for time, but if the ground of liability be that the master has the power to choose his servant that cannot make any difference. On the other hand, it was said, that the coachman was the servant of the defendant, and if that was not so, still the injury having arisen through an act done for the benefit of the defendant, he would be liable according to Bush v. Steinman. The case was distinguishable from that of a hired post-chaise or hackney-coach. No wages was paid by the owner of the horses to the coachman. The defendant might have ordered the coachman to drive wherever he pleased. Prior authorities were consistent with the defendant's liability, as they merely show that the owner of horses was liable, not that the hirer is not also liable for injury sustained in consequence of misconduct in the driver. The Court being equally divided in opinion, the point was not decided.^ In the case of Quarman v. Burnett, the question again occur- red with some specialties, such as the defendant having had the coachman who generally drove them measured for a suit of livery, and they allowed him two shillings every drive. The driver in this case bad stated wages from the job-mistress. At the time the damage was occasioned, the driver had gone into the defen- dant's house to put off the hat, leaving the horses and carriage on the road uncared for, when the horses ran off and injured the plaintiff's carriage standing on the road side. The Judge at the trial thought that there was evidence to go to the jury, and on a motion to enter a non-suit, the Court gave judgment for the defendant. The judges held that the specialties did not interfere with the decision of the general principle. " The master is liable for the acts of his servant, and that person is undoubtedly liable who stood in the relation of master to the wrong-doer. But the liability by virtue of the principle of master and servant must cease when the relation itself ceases to exist, and no other j)erson than the master of such servant can be liable on the simple ground that the servant is the servant of another, and his act the act of another, consequently a third person entering into a con- tract with the master, which does not raise the relation of master and servant, is not thereby rendered liable." " Not merely would ' Laugher v. Pointer, 1826, p. 31. xl EEPAEATION FOE INJUEIES. the hirer of a post-chaise, hackney-coach, or wherry on the Thames, be liable for the acts of the owner of the vehicle, if they had the management of them, or their servants, if they were managed by servants, but the purchaser of an article at a shop which he had ordered the shopman to bring home for him, might be made responsible for an injury committed by the shopman's carelessness whilst passing along the street." ^ In Milliganv. Wedge, in the Queen's Bench, the same rule was confirmed. There the defendant had purchased a bullock at Smithfield, and employed a licensed drover to take it to his slaughter-house in the city. The drover entrusted this duty to a boy, and in driving the bullock along with several others be- longing to different individuals, the bullock did damage to the plaintiff. The case of Quarman was held to be well decided. Lord Denman expressing doubts whether there was any distinc- tion in the law in regard to the cases of fixed and of moveable property referred to by Justice Littledale in the case of Laitgher. Justice Williams put the case in this way:— "The difficulty always is to say whose servant the person is that does the injury. When you decide that the question is solved. To say that the party is liable from whom the act ultimately originates is indeed a rule of great generality, and one which will solve the greater number of questions, but its applicability fails in one case. For when the person who does the injury exercises an independent employment, the party employing him is clearly not liable. I agree in the decision of Mandelson v. Murray, for the warehouse- man's servant, whether daily or weekly, is equally under the control of the warehouseman, and that is the way in which Mr. Justice Storey puts this point ; he brings it to the question who employed the person that did the njury ?" In the case of Randel&on v. Murray, the defendants were occupiers of a bonded warehouse in Liverpool, and for the pur- pose of removing some barrels of flour from their warehouse, they employed Wharton, a master porter, who used his own tackle, and brought and paid his own men. He also employed Taylor, a master carter, to take the barrels away. Taylor sent his own carts and his own men, and one of the men was injured by a ' B. Parke in Quarman v. Burnett, p. 71. ' Milligan v. Wedge, Dec, p. 74. LIABILITY ON EMPLOYEBS. xH barrel falling on liim. The defendant contended that the remedy was against Wharton. The jnry found for the plaintiff. The Court confirmed the verdict. " It seems to me to make no differ- ence whether the persons whose negligence occasions the injury, be servants of the defendants, paid by daily wages, or be brought to the warehouse by a person employed by the defendant. The latter frequently occurs in a large place like Liverpool, where many persons exercise the occupation of a master porter. But the law is the same in each case." ^ Mapsonv. Gubbit, is also a clear authority on this question. There a builder contracted with the owners of a club-house to execute some repairs ; these included some alterations in the gas-fittings, and the contractor employed a gasfitter to execute this depart- ment of the work. By carelessness of some of the gasfitters' men an explosion took place, injuring the plaintiffs, who sued for damages against the contractor. The Court sustained the defence of non-liability — Lord Abinger observing : — " I think the true principle of law, consistent with common sense, was laid down in the case of Quarman v. Burnett, in which all the previ- ous cases on the subject were cited and considered, and some distinguished and some overruled. I have always been of the same opinion, and see no reason for departing from that deci- sion." B. Parke said that Quarman's case had been approved of by the Court of Queen's Bench, in Milligan v. Wedge, and Lord Denman there said — " In Randelson v. Murray, the work to be done was necessary work done on the premises ; the owners would have been liable if he had used his own servants and his own tackle : by hiring a porter and his tackle for a day he could not exempt himself' from that liability." ^ In the case of Beadie and Hobbit, the question was again fully discussed. A person passing under a viaduct, erected over a turnpike road, was kUled by a stone falling on him from the works in course of being constructed, and action was raised against the railway company for compensation. The company had let out the construction of the railway to a contractor, whose workmen caused the injury complained of. Liability was main- tained, on the principle that the known owner of fixed property was liable for an injury done in the progress of the work going on for his benefit on that property. Whether the person causing • Per J. Littledale in Eandelson v. Murray, Dec, p. 53. « Bapson v. Cubbit, p. 76. d xlii EEPAEATION FOE INJUEIES. the accident was his servant or not, as it mnst be presumed that the owner of the property, in such a case, has the control over all persons working on his premises ; and the cases of Bush V. Steinman, and Randelson v. Murray, were quoted. The de- fendants maintained that the true principle of all the cases is, that he who sustains an injury must proceed against the party who committed it, or those who employ him, and the question in the latter case is, was the party who did the act the servant of the party causing the injury, and that there was no distinction in this respect between fixed and moveable property, except, per- haps, in the former case, where the act complained of is a con- tinuing nuisance. The Court nonsuited the plaintiff, holding the law as settled by the prior decisions. " Our attention was di- rected during the argument to the provisions of the contract, whereby the defendants had the power of insisting on the re- moval of careless or incompetent workmen ; and so it was con- tended they must be responsible for their non-removal ; but this power of removal does not seem to us to vary the case. The workman is still the servant of the contractor only, and the fact that the defendants might have insisted on his removal, if they thought him careless or unskilful, did not make him their ser- vant. In Quarman, the particular driver was selected by the defendants, but this was held not to affect the liability of the driver's master, or to create any responsibility on the defendants ; and the same principle applies here."^ In Knight v. Fox, &c., the same decision was pronounced. There a railway company had contracted with Brassey to complete certain works on their line. Brassey sublet part of his contract to the defendants. The defendants entered into a distinct con- tract with Cochrane to supply scaffolding for a bridge for a spe- cific sum — the defendants finding the rest of the materials, and also the lights to warn passengers. During the construction one of the poles of the scaffolding projected on the pavement, while there was only one light placed at night to guide passengers. Owing to the defective light, the plaintiff stumbled over the pro- jecting pole and broke his leg. The Court directed a nonsuit, holding that in the management of the erection of the scaffolding ' J. B. Rolfe in Eeadie and Hobbit v. London and North-Western Bailway Company, p. 107-9. LIABILITY ON EMPLOYEES. xliii Coclirane was not the defendant's servant. The case of Overton V. Freeman, followed on similar grounds. ^ The lessee of a ferry hired a Steamer for the day with a crew to carry his passengers across. A passenger paying his fare to the lessee being injured by the negligence of the crew, it was held that the owner of the steamer was liable, the crew being his servants. ^ If the work ordered to be done be illegal, the party employing the contractor is held responsible for any damage or injury which may be sustained by any one through the operation. * The law on this branch may be stated in the words of Lord Campbell, in the case of Ellis : — " The proposition is quite untenable, that where there is a contractor employed to do the work, the person who employs the contractor can in no case be liable for damage arising from the performance of the work . It seems to me that if the contractor does what he is ordered to do, the act of the em- ployed is the act of the employer. I approve of the decisions in Knight v. Fox, Peachy v. Bowland, and Overton v. Freeman, because in these cases nothing was ordered to be done but what the employer had a right to order to be done ; and there being a contract to do what was lawful, the employer was properly held not to be liable for what was done negligently in relation to the contract. The relation of master and servant does not in such cases exist. But in the present case, the employer had employed the contractor to do an illegal act, which was the cause of the damage that arose, and the very ground of the present action. The defendants had no right to lay open the streets of Sheffield to put down their pipes, and the accident arose from the stones being taken up according to their orders. This is a case where a person is employed to do what is unlawful, and of loss arisipg from doing that illegal act. There is, therefore, both damnwm and injwria, and the defendants having employed the contractor to do the act are liable for the loss." * 1 Knight V. Fox, &c., Dec., p. 127 ; Overton v. Freeman, p. 128. = Dalzell V. Tyree, 15th June, 1858, Dec, p. 313. 'Ellis V. SheflBeld Gas Co., 1853, p. 173. * Per Lord Campbell in Ellis v. Sheffield Gas Co., p. 170. xliv EEPAEATION FOE INJURIES. CHAPTEE VI. IS THE OWNER OP FIXED PROPERTY LIABLE FOR INJURIES DONE BY WORKMEN ENGAGED THEREON WHEN THE WORK IS DONE BY CONTRACTORS ? Generally speaking, it may be held as settled, that no liability will attach to the proprietor for injuries caused to third parties, by the fault or negligence of contractors, or of their workmen. If he has contracted with competent tradesmen to erect a house, or to build a ship, or any other subject not in the ordinary course of his own trade, the contractor whose workmen, while in the course[2of executing the work, may have committed the wrong, wiU be responsible. There must be a clear contract, however, for the execution of the work, and in any such contract it is to be presumed that the proprietor contracted for its being done in a lawful manner ; and unless it can be shown that the owner was cognizant of and a party to the improper or wrongous pro- ceedings which may have caused the injury, or that the contract was to do what was xmlawful, and what the employer had no right to order to be done, he will not be responsible. In such cases it is held that there is no relationship between a proprietor and a contractor, as of master and servant, in this sense, and that the principle of liability of one for the acts of another must rest on the implied mandate and authority created in the contract of service. The question of liability of the owner of property for damage done to neighbouring properties, arising from the insufficiency of the subject, or from the mode of using, repairing, or altering it, is afterwards referred to, Chap. vii. The difficulty more frequently arises as to what is to be held the character of contractor, in the sense to exclude liability for the wrongous act of the workmen employed in the undertaking, and on this point the decisions have varied.^ In the case of Nishett v. Dixon and Co., it was found that the tenant of an ironstone pit was liable for injury done to a coal naine immediately above the ironstone, caused by the negligence ' T>risbett V. Dixon and Co., p. 145 ; Bankin v. Dixon, p. 152 ; Swift v. Christie, p. 143 ; Eandelson v. Murray, p. 53. OWNERS OF FIXED PEOPEETY AND CONTEACTOES. xlv of a sub-contractor. Dixon and Co. heing the lessees, had, in the ordinary course of their trade, contracted with two indivi- duals to take out the ironstone at so much per ton. The work- was to be constantly and fairly carried on, agreeably to the orders of Dixon and Co. or their overseers, and the men to be employed were to conform to the rules regulating the other workmen in the employment of Dixon and Co. ■ In the course of the operations a fire occurred in the coal seam, by the carelessness of the sub-con- tractors, and the Court held Dixon and Go. liable. The rule seems to be, that the contract must be to exercise a separate and inde- pendent trade or calling apart from the employer, and not a mere sub-contract to carry on his trade or business, and thereby be for his behoof, and doing what he himself intended to do.^ Lord Ivory thus clearly puts the point : " The cases which have hitherto oc- curred were cases of employment of tradesmen within their proper calling, such as a mason, a plasterer, or gas-fitter, employed in work which the individuals employing them are not expected to do for themselves. These things are in their nature separate and distinct ; but here the case is different. The injury is suffered by some- thing done in the course of the defenders' exercise of their own rights. It was a matter strictly within the defenders' own call- ing. They called in a subordinate party to perform a subordin- ate operation within their own trade. The party so called in belonged to the defenders' trade, and was subject to the defenders' instructions. The work was to be done on their own premises, and all in execution of their own trade and work. That view comes out with greater eflPect, from the position in which the parties stand in reference to the contract of lease. The contract refers to a certain field of ironstone. They bind themselves to perform certain duties, which are entirely their own. They can- not delegate or transfer these duties. They may, no doubt, em- ploy subordinates, but they cannot transfer their responsibilities to them.* The case of Swift v. Christie followed on the same principle.* In Bush v. Steinman, the owner of a house had employed a surveyor to do some work on it ; there were several sub-contracts, ' Nisbett V. Dixon and Co., ut supra. * Per Lord Ivory in Nisbett v. Dixon and Co., p. 161 ; see also Bankin v. Dixon and Co., p. 152. » Swift ». Christie (1854), p. 193. xlvi EEPAEATION FOE INJUEIES. and one of the workmen of the person last employed laid down some lime on the road, in consequence of which a carriage was overturned. It was held that the owner of the house was liable, though the person who had occasioned the injury was not his im- mediate servant.^ So also in Sly v. Edgely, a person who had em^- ployed a bricklayer to make a sewer, who left it open, whereby a person fell in and broke his leg, was made liable, on the prin- ciple that he had employed the bricklayer, and was answerable for what had been done.^ The Judges, in subsequent cases, seemed to have doubted the rule so laid down, and were de- sirous of showing some specialty in the circumstances rather than to admit the general principle. Littledale, J., in Laugher y^ Pointer, thus refers to the case : " But supposing the cases to be rightly decided, there is this material distinction, that there the injury was done upon or near, and in respect of the property of the de- fendants, of which they were in possession at the time ; and the rule of law may be, that in all cases where a man is in posses- sion of fixed property, he must take care that his property is so used and managed that other persons are not injured, and that whether his property be managed by his own immediate servants, or by contractors or their servants. The injuries done upon lands or buildings are of the nature of' nuisances, for which the occupier ought to be chargeable, when occasioned by any act of persons whom he brings upon the premises. The use of the pre- mises is confined by law to himself, and he should take care not to bring persons there who do any mischief to others." He stated that Lord Chief Justice Eyre, who decided Stein's case, had expressed doubts of its soundness, and found difficulty in stating the precise principle on which the action was founded. ^ The cases of Littledale v. Lord Lonsdale and Leslie V; Pounds, where liability was held, were referred to by the Judges as hav- ing been decided in special circumstances. The former related to the working of a colliery, and was decided on somewhat similar principles as the case of Nishet, as explained by Lord Ivory. His Lordship had a foreman or steward, paid by him, and he engaged all the under workmen, who were paid by the defend- ant's funds ; and in the latter case the tenant of the house was bound to repair it, but the landlord superintended the repairs, ' Bush V. Steinman, Dec. p. 3. 2 Sly V. Edgely, 6 Esp. 6, referred to in Laugher v. Pointer, Dec. p. 33. 3 Laugher v. Pointer, p. 33. OWNEES OF FIXED PEOPEKTY AND CONTEACTOES. xlvii and had put up some temporary boards as a protection to the public, but they proved insufficient, and he was held liable for an accident ; but the case was decided on the ground of his per- sonal interference about his own property.^ In Laugher v. Pointer the case of Bush v. Steinman was referred to as doubtful, and only supportable in the supposed specialty in reference to fixed property. In the case of M'Lean y. Russell, Macnee tSs Co., the point was discussed. The decision in Bush v. Steinman came under review, and the Court considering the authority of that case to be greatly impaired by subsequent decisions, held, upon a review of the English cases, that liability in the circumstances could only attach to the sub-contractor whose servant did the wrongous act whereby the damage was caused. Eussell, M'lSTee & Co. had employed a contractor to make alterations on a tenement ; the contractors in their turn sub-contracted with other master trades- men to execute certain departments of the work. One of the workmen of Tait the plasterer had carelessly left a heap of lime on the outside of the wooden enclosure erected in front of the building, and whereby the pursuer at night in driving along the street had been injured. It was contended on the authority of the English decisions, that not only the proprietors of the subjects, but also the principal contractors were responsible. Lord EuUer- ton said, "the question put to the jury was whether the accident in question occurred through the fault or negligence of the defenders separately. It is clear the jury held that the person immediately wrong was liable in damages, for they find Tait hable, but then they reserve the question, whether the others are responsible for him. The question therefore is just whether the mid contractor and employer are to be held liable for wrong done by the sub- contractor. Now it is to be observed, that there was nothing hazardous in what was done. That is a different case. There was nothing of that here, the repairs of this house were not at- tended with any hazard. There was no attempt to question the general" character of Tait, or of the principal contractor as persons qualified for the work they had to do, and of good character. The question, as I said, therefore just comes to be, whether the proprietor is liable for the contractor, and for the sub-contractor, ' Littledale «. Lord Lonsdale, 2 H. Bl. 299 ; Leslie v. Pounds, 4 Taun., refer- red to in Laugher v. Pounds, Dec. p. 33. xlviii EEPAEATION FOB INJUEIES. whether he is called on to warrant the whole operation ; now I do not think there is any principle for extending the liability so far. The case of servants is different.^ In Quarman v. Burnett, — B.Parke, delivering the judgment of the Court against liability on the hirer of the horses, thus refers to the preceeding cases : — "It is true that there are cases, for instance that of Bush v. Steinman, Sly v. Edgly, and others, and perhaps amongst these may be classed the recent case of Bandelson v. Murray, in which the occupiers of land or buildings have been held responsible for the acts of others than their servants done upon, or near, or in respect of their property. But these cases are well distinguished by my brother Littledale in his very able judgment in Laugher v. Pointer. The rule of law may be, that when a man is in possession of fixed property, he must take care that his property is so used or managed that other persons are not injured, and that whether his property be managed by his own immediate servants, or by contractors with them or their servants. Such injuries are of the nature of nuisances, but the same prin- ciple which applies to the personal occupation of land or houses by a man or his family, does not apply to personal moveable chattels which, in the ordinary conduct of the affairs of life, are entrusted to the care and management of others who are not the servants of the owners, but who exercise employments on their own account with respect to the care and management of goods for any persons who choose to entrust them."^ In Milligan v. Wedge, Lord Denman said, " I think we are bound by the late decision in Quarman v. Burnett, which was pronounced after full consideration. It may be another question, whether I should agree in all the remarks delivered from the Bench in that case. If I felt any doubt it would be whether the distinction as to the law in the case of fixed and of moveable property can be relied on."^ Rapson v. Cvhbii in the Court of Exchequer the same decision was come to, and the plaintiff non-suited. " The plaintiff has his remedy against Bland, whose negligence was the cause of the injury. If he attempts to go further, and to fix on the defendant, it can only be on the ground of Bland being the servant of the ■ Richmond or M'Lean v. Russell M'Nee & Co. p. 115-119. ° Quarman v. Burnett, p. B. Parke, p. 73. ' Lord Denman in Milligan v. Wedge. Dec, p. 74. OWNERS OP FIXED PEOPEETY AND CONTKACTOES. xlix defendant, but then the obvious answer is, that Bland was only a sub-contractor to do a certain portion of the work, and that the relation of master and servant did not subsist between him and the defendant. The true rule on this subject was laid down by this Court in the case of QuarTnan v. Burnett which is directly in point."^ The question was fully argued in the subsequent cases of Meedie and Hobbit, and the supposed difference in liability as regarded fixed a ndmoveable property disregarded. In these cases the Company had contracted with third parties to construct the Eailway, and an injury was sustained by a passer through care- lessness on the part of workmen of the contractor. The plaintiff was non-suited. The whole prior authorities were considered, and the law was held as settled in conformity with the case of Quarman, and others referred to. " To show that it was not, it was argued by the counsel for the plaintiff that there is a recognised distinction on this subject between injuries arising from the careless or unskilful management of an animal, or other personal chattel, and an injury resulting from the negligent management of fixed real property. In the latter case it was contended that the owner is responsible for all injuries to passers by, or others, howsoever they may have been occasioned, and here it was said the defendants were at the time of the accident the owners of the Eailway, and so are the parties responsible. " This distinction as to fixed real property is adverted to by Mr. Justice Littledale in his very able judgment in Laugher v. Pointer, and it is also noticed in the judgment of the Court in Quarman v. Burnett. But in neither of these cases was it neces- sary to decide whether such a distinction did, or did not exist. The case of Bush v. Steinman was strongly pressed in argument in support of the liability of the defendants, both in Laugher v. Pointer and Quarman v. Burnett, and as the circumstances of these two cases were such as not to make it necessary to over- rule Bush V. Steinman if any distinction in point of law did exist in cases like the present between fixed property and ordinary moveable chattels, it was right to notice the point. But on full consideration, we have come to the conclusion that there is no such distinction, unless, perhaps, in cases where the act com- Rapson v. Cnbbit, per B. Parke, p. 77. 1 EEPAKATION FOE INJURIES. plained of is such as to amount to a nuisance, and in fact, that, ac- cording to the modern decisions, Bush v. Steinman must be taken, not to be law, or at all events, that it cannot be supported on the ground on which the judgment of the Court proceeded.''^ The subsequent cases confirm the same principle, that when a contractor is emyloyed to do a piece of work, lawful in itself, and in the ordinary course of an independent calling, the employer is not responsible for what is done negligently in course of the contract, and that the relation of master and servant, does not in such cases exist. ^ The law on the point may now be held to be the same in both countries. " Several authorities, both Scotch and English, have been referred to. From the latter it would seem that, at one time in England, the proprietor or principal party was not re- lieved from liability or reparation of damage arising from imper- fect erection, or negligent acts in its progress, even when car- ried on by a contractor employed by him. But the tendency of recent decisions, if not the rule fixed by them, has been, in cer- tain cases, to attach responsibility to the employer alone. This principle was, to some extent, recognised here, in the case of Russell, M'Nee, and Co., which, however, was peculiar in its cii- cumstances. Still, in all the cases cited, of work done upon the property of the principal, in which the principal has been re- lieved from liability, the fact of there being a regular contract, written or verbal, for the performance of the work, appears to have been substantiated; and also that the work was one of some continuance, and that the injury done, for which damage was claimed, was caused by the wrongous act of the contractor during the progress of the work, and while as yet the subject, so far as the work was concerned, may be said to have been in the possession of the contractor and his servants in order to its being carried on and completed, and under his independent control.' ' B. Rolfe in pronouncing judgment in Eeedie and Hobitt v. London and North Western Railway Company, (1849.) Dec, p. 107-1 11. 2 Peachy v. Rowland, p. 166. Ellis v. Sheffield Gas Co., p. 173. Overton Freeman, p. 128. ' Lord Wood in Cleghorn, v. Taylor, p. 248. LIABILITY OP OWNEES OP PEOPEETY. U CHAPTEE VII. THE LIABILITY OP OWNEES OP PEOPEETY FOE DAMAGE DONE TO OTHEES, PEOM THE MODE OP USING, EEPAIEING OE ALTEEING IT. The general rule is, tliat a proprietor is bound to keep his property in such a condition that it shall not be the cause of injury to his neighbour. LiabUity will attach to an owner where operations on his property unduly interfere with or cause in- jury to the neighbouring subjects — or when he orders works of any undue hazard to his neighbours or others, or when his pro- perty may, from insufficiency, cause damage, and it is not neces- sary to support such claim to show that the owner wilfully caused, or knowingly allowed his property to be put, or to re- main in an insecure state. But, although liable to those sus- taining the damage he may have his relief against those who may have caused such insufficiency if it is not the result of tear and wear from exposure to wind and weather.^ In Weston v. Incorporation of Tailors of Fotterrow, liability was attempted against the proprietor of a tenement in Edinburgh for damage occasioned to the tenant of th'e lower flat by an over- flow of water caused by an improper or careless use of the water- closet. In charging the jury. Lord Meadowbank said — "I there- fore lay it down in law, that if anything has been done whereby damage has been created to the possessor of the inferior tene- ment, through the fault or negligence of the tenant of the upper, it must be held that it was done by him acting for behoof of the proprietors of the latter, under the implied authority from them ; in fact he was placed there as their representative, and it must be held that the act was done for their behoof." The jury found for pursuer, but an exception having been taken to the charge, the Court allowed the exception, and set aside the verdict. " Now to hold with reference to such a tenement, that the owner, whether he reside in Edinburgh or not, is liable for any damage arising from the acts of his tenant ; and that it ' is of no conse- quence whether it is wilful and malicious, or from the negligent or unskilful use of the subject let, if the landlord is to be liable. . OT7. leghorn v. Taylor, per Lord Justice-Clerk, p. 246. Pollock v. Wilkie, lii EEPAEATION FOE INJUEIES. without taking the tenant into view, and the pursuers are not bound to look to the tenant at all, I have some difficulty in being able to discover a principle to entitle us to concur in that part of the charge. I cannot agree in thinking that this erection carries nuisance on the face of it. If it is constructed in the ordinary manner, and not so as necessarily, or in extreme probability, to occasion damage from its ordinary use, there is no farther liability on the landlord. But if by neglect, or by what does sometimes occur, viz., mischievous practices on the part of the tenant or his family, damage does occur, it is not the landlord but the tenant who is liable. To suppose that the landlord undertakes for the faithful use of this apparatus, I can find no principle of law whatever. "When we are considering the liability of the landlord, we are to look at the lease, whether the subject is let in the ordinary way, and with the ordinary circumstances. If it be a nuisance in itself, or so as it may become a nuisance, then, according to the dicta of the English law, the landlord is liable, but not when it merely becomes a nuisance from the tenant's fault. If this be the rule in England, it has been also followed here.^ In deciding the case of Hobbit, the Court, per B. Eolfe, said — " It is not necessary to. decide whether in any case the owner of real property, such as land or houses, may be responsible for nuisances occasioned by the mode in which his property is used by others not standing in the relation of servants to him, or part of his family. It may be that in some cases he is so responsible. But then his liability must be founded on the principle that he has not taken due care to prevent the doing of acts which it was his duty to prevent, whether done by his servants or others. If, for instance, a person occupying a house or a field should permit another to carry on there a noxious trade, so as to be a nuisance to his neighbours, it may be that he would be responsible though the acts complained of were neither his acts nor the acts of his servant. He would have violated the rule of law — " Sic utere tuo ut alienv/m, non ladeas ?"' We have had cases of injury to neighbouring property, as in the case of Callender v. Eddington — a party executing repairs under the employment of the defender, brought down or cracked ' Lord Justice-Clerk Boyle, in Weston v. Incorporation of Tailors, p. 68, 69. 2 Hobbit V. London and North "Western Railway Co., p. 111. Eich v. Baster- field, per Justice Cresswell, 4 C. B. 802. LIABILITY OP OWNEES OP PEOPEETY. liii the house of a neighbour. It was not pleaded that Eddington was not responsible, and there can be no doubt that he was. It was the opinion of men of skill, who were examined, that the operation might have been carried on in such a manner as to occasion no danger or damage, but as this had not been done, the defender was held liable.^ In Cleghorn v. Taylor, damage was done to an adjoining pro- perty by a chimney-can falling from the defenders' property. Liability was maintained on the ground that the proprietor was responsible for the chimney-can being put up in an insecure manner. The defenders pled that there having been no culpa on their part, there was no liability ; and that if skilled workmen were employed, the owner was not liable for injuries caused by the insufficiency of the work. The Court held the proprietor liable. " The question of law raised on this special verdict is of the very highest importance. The property of the defenders was, in respect of the particular matter in question, in an insecure and insufficient state, and this portion of it in consequence thereof fell and injured the pursuer's property. Is the proprietor liable in damages caused by his property being in an insecure and in- sufficient state? On that point I entertain no doubt whatever.^ Again, " Conterminous proprietors, especially within burgh, are under certain mutual obligations and restrictions in the exercise of their property rights. To them peculiarly is the rule of law appli- cable, sic utere tuo ut aliermm non laedas. They must use their pro- perty so as not to injure that of their neighbours by any nuisance, or by what is tantamount to it, being within their premises. They may not either erect insecure buildings, the fall of which may injure their neighbour, or suffer to remain on their property ruinous tenements." " The facts found by the jury do not raise any question of this sort, viz., that while the workmen of the slater were engaged in the erection of the chimney-can and iron top, their negligence or culpa caused the can or the iron top, or both, to fall and thereby damage the pursuer's property. No case of that kind occurs for decision. The work here was com- pleted and given over to, and in the presence of, the defenders and their tenant. It thenceforth formed part of the premises erected on their property. It was their chimney-can and top. - Lord President in Nisbet v. Dixon & Co., p. 149. - Lord Justice-Clerk Hope, p. 246. liv EEPAEATION FOE INJURIES. " The insecure and insufficient condition caused it to fall, and equally as in the fall of a ruinous tenement, the owner of the premises must make good the loss to the party injured."^ "The cases relied on by the defenders were all of them cases where injury causing damage was committed by the workmen or ser- vants of third parties carrying on a distinct and independent em- ployment, and with whom the owner or principal sought to be subjected in the damage suffered, had contracted to do the work. The fault or negligence of the servants of such parties, contrac- tors, or employers carrying on a distinct business, was not held to charge with liability the principal or owner employing them. It has been {Nisbett v. Dixon and Go.) remarked that the pro- gress of the English law had of late been in a direction more in accordance with our views, and that the last case, that of Allan V. Hayworthy, seems to come to this, that though a railway com- pany, who had employed a contractor, might not be liable for injury done to a passer-by, they were responsible for injury to property arising from careless execution of the railway works."^ : A tradesman is liable for the unskilful and improper manner in which he performs his work, and responsible for the damage to buildings thereby occasioned. In Pollock v. Wilhie, the pur- suer contracted with the defender to execute some alterations on a tenement in George Street, Edinburgh, and in the course of the operations, which were proved to have been improperly and unskilfully executed, damage was done to the adjacent properties. The pursuer, on being called on to repair the injury, did so, and brought his action of relief against the tradesman with whom he contracted. The Court held the defender liable, repelling a plea that he had carried on the work under the eye of the architect or his clerk. " The defence here is not that the defender did not do wrong, but that the pursuer saw him doing wrong, and did not dismiss him. This man was a builder, and agreed to do the work. "We cannot listen to this."' 1 Lord Cowan in Cleghom v. Taylor, pp, 250-1. " Lord Cowan in Cleghom v. Taylor, ut supra. 3 Lord Justice-Clerk in Pollock v. Wilkie, 17th J,uly 1856, ^. 257;' LIABILITY OF RAILWAY COMPANIES. Iv CHAPTER VIII. LIABILITY OF RAILWAY COMPANIES AND COACH PKOPEIETOES FOit INJURIES SUSTAINED BY PASSENGERS. The obligation on a Eailway Company under their contract with the passenger, is, that they are to carry with reasonable care, and the question wiU be, what will discharge them of that obligation. It has been decided in the case of stage coaches, that, on the proprietor proving the sufficiency of the coach, he was entitled to absolviter from an action of damages occasioned by its break- down.^ Again, in the prior case of Anderson v. Pyper, the cause of the accident being the breaking of an axle, the point was anxiously discussed. The Chief Commissioner holding it as a new point in the practice of Scotland, said, " The rule I should draw, taking the analogy of tlie law of England, would be that if the carriage is sound so far as the human eye can discover, the proprietors are not liable. You are to consider the state of the coach, and form your opinion whether the human eye could have discovered the defect." Again, "you are to say whether there was such appearance- of defect as the eye of an artificer applied with reasonable attention could discover, and will take into considera- tion that the eye of an experienced person might discover de- fects imperceptible to others." The jury found for the defender, holding the defect to be of such a nature as not to be observable, and a new trial was refused.^ In the case of Ounn, also the Commissioner stated as law, " that the proprietors undertake to furnish everything necessary as to horses and carriages, and proper persons to manage them, and the proprietors are liable for the misconduct of their servants."^ The same principles may be fairly applied to the case of Eail- way Companies. In M'Glashan and Hood v. the Dundee and Perth Railway Campany^ the defence was somewhat on the grounds above indicated, that the accident was caused without any fault on their part, but by some latent and inexplicable cause which was not discernible, and which they could not obviate or control, and had no power to avert. Parties were at issue on the J Lyon, 22nd June, 1838, p. CI. « Anderson v. Pyper, p. 23. * Gunn V. Gardner, &c., p. 21. Ivi REPARATION FOE INJURIES. facts, but the case was settled extra-judicially by a payment by the Company.^ Every person on entering a train must be aware of some risk on the journey for which no human foresight can provide ; and assuming that the Company had done all that human prudence could suggest, are they free from the consequences of a pure acci- dent ? The essence of liability in such circumstances is fault, and without fault on the Company or their servants no liability would arise. This is also brought out by the terms of the issues in the various cases sent to the jury, these invariably presume '■ fault, negligence, or want of skill of the defenders, or others for whom they are responsible." The difficulty often arises on whom is the burden of proof thrown. It has been said that a collision or break-down presumes culpa, and that the onus is on the Com- pany to prove sufficiency, and here also there is a distinction some- times taken, that if the pursuer is able to prove insufficiency of any kind, or negligence, that he is not bound further to prove that such insufficiency or negligence is of such a nature as to make the defenders liable. That the mere proof of negligence or insufficiency raises a prima facie case, so as'to throw on the defender the duty of shewing that the insufficiency is of a nature for which they are not liable, and beyond the utmost skill and care to have discovered." Although a Eailway Company are not held to warrant the safety of passengers as of goods, yet they are bound to provide against accident as far as human foresight and regard for the safety of the passengers can enable them to do. They must trust nothing to chance. If they see or suspect any deficiency or insufficiency, they wiU be liable for neglect in not acting on such knowledge. If a train was exceeding its regulated speed making up lost time, or any negligence occurred on the part of the officers or servants of the Company whereby any explosion or collision took place, the Company would be liable. It has been held in reference to stage-coaches, that while a party demanding reparation must prove the cause of damage, yet when the break- down is proved, that the presumption was that it occurred from some fault which the owners ought to have guarded against* ■ M'Glashan and Hood v. Dundee and Perth Eailway Company, p. 102-104. 2 Hood, p. 107 ; Gunu, p. 22 ; Christie o. Griggs, 2 Camp. 79 ; Carpue li. London and Brighton Railway Company, p. 87-8. ' Lamb v. Lyon, p. 61. LIABILITY OF MAGlSTfiATES AND TEUSTEES. Ivii In Birkett v. Whitehaven Junction Railway Oo., tlie Company were held liable for injury to a passenger by a collision caused at a siding by inattention to the switches. The switch was self-act- ing, and it was proved that although there was no one in charge of it, one of the men was working close by, and for the purpose of looking after the switch, and did shortly before examine it. The Jury held the Company guilty of negligence.^ In Bird v. The Great Western Railway Company, the point occurred on whom the onus lay. The Company were assoilzied in respect it did not clearly appear what was the cause of the accident. It was there pled that the accident presumed fault on the Com- pany, and Chief Baron Pollock observed, " That depends on the nature of the accident, as for instance, if it arose from a collision of different trains on the same line, then it may be so. Here it is otherwise ; the accident was of a nature consistent with the ab- sence of negligence ;" and again, it is impossible to say thatj.the accident itself, even if prima facie proof of negligence, was con- clusive proof of it, and if not, then there was evidence on both sides ; the question was for the jury, and their finding was sub- stantially a finding for the defendant, on the ground that there was no negligence."* In Latch v. The Rumner Railway Company, the defendants were assoilzied, it appearing that the accident was occasioned by the wilful act of a stranger, by inserting a stone under the " lever" of one of the points, and there being no evidence of neg- ligence on" the part of the Company, it being also proved that the "lever" was right a short time before the accident.^ CHAPTEE IX. LIABILITY OP MAGISTEATES OF BUEGHS, TEUSTBES OF TUENPIKE EOADS, HAEBOUE TEUSTEES AND OTHEES, AND THE FUNDS UNDEE THBIE MANAGEMENT. In the case of Innes v. The Magistrates of Edinburgh, the de- fenders were held responsible for the injury sustained by the • Birkett v. Whitehaven Junction Railway Company, p. 324. ' Bird V. The Great Western Railway Company. Dec., p. 315-6. ' Latch V. The Rumner Railway Company, p. 296. e Iviii BEPAEATION FOB INJURIES. pursuer falling into an excavation on the public street by reason of insufficient fencing. It proceeded on the ground of the duty of the magistrates to see that the streets of the city were kept in such a state as to prevent the slightest danger to passengers.^ In Dargie v. The Magistrates of Forfar, the same point occurred. There the pursuer, while , walking along the public street, fell over a large stone lying on the pavement and was in- jured. The defence was, that no relevant statement of misfeas- ance, or neglect of duty on the defenders' part, had been made ; and, supposing the injury complained of, could be traced to their negligence, the burgh funds could not be answerable for the con- sequences of their delinquency. The action was directed against the Magistrates and Council, as representing the community of the burgh. The Court there distinguished between the duties imposed by law or statute on the magistrates, as administrators of the burgh, from those incumbent on the burgh as a corpora- tion. " The question, in the present instance, seems to be. Whether the duty or obligation of maintaining the streets of a burgh be- longs to the one or the other of these two classes. It is clear that there is a municipal duty somewhere, either on the burgh or on its administrators only, to have the public streets in proper order. If that duty lies solely on the magistrates, as adminis- trators, like the conservation of the peace, or the levy of the Annuity-tax, the present action is untenable. If it lies on the burgh and its administrators, as the organs of the burgh, like the maintenance of prisons before the New Prisons Act, the present action seems to be competent. It may appear a singular result that the community and its funds should thus be liable for the unsafe state of the public streets, when a corresponding liability would not exist if the streets were under the management of a public commission. But the answer to this difficulty seems to be that there is an essential difference between a trust and a cor- poration. A trust is not a person in the eye of the law. It is created for certain purposes, but the duties imposed under it are laid on the trustees, and for any failure of duty the wrong-doers can be responsible. A corporation is a legal person. It cannot, it is true, commit crimes or proper delicts, but it can undertake corporate duties ; it may fail to discharge them, and the failure may be visited civilly on the party faihng — ^that is, on the cor- ' Innes v. Magistrates of Edinburgh, 6th Feb., 1798, p. 1 . LIABILITY OF MAGISTRATES AND TRUSTEES. lix 1^ jration which undertook the duty, and which did not discharge it." " In the law of England, from which the principles appli- cable to public^ trusts under this head seem, in a great measure, to have been brought or revived, it does not seem impossible to hold that a corporation may have duties, and may be liable in damages for a failure to discharge them." (Lord Weaves). On the whole, the Lord Ordinary sustained the relevancy of the action, and the Court adhered. The jury subsequently awarded damages to the pursuer.^ Holding that the obligation to keep the streets of the burgh free from dangerous obstructions is incumbent on the Corporation, I further think that the plea that the funds of the Corporation are not answerable for the consequences of a breach of that duty, or of failure to perform it, is not well founded. The plea is directly at variance with the judgment in the case of Innes. Nor do I think that the principle recognised in that case is at variance with any subsequent authority. The cases in which it has been held that funds raised by taxation for specific purposes — such as the making and repairing of public roads — cannot be applied in relieving the administrators of the funds, or contractors with them, ifi-om the consequences of their misconduct or negligence, appear to me to depend upon different principles. I do not see that, in the decision of these cases, the principle of the case of Innes was called in question. Whether the Corporation may have relief against any of its office-bearers, to whose fault or negligence the breach of its obligations may be attributable, is a different question.^ As to the case of road trustees, the decisions in Scotland have varied. There have been cases to the effect that the trust funds are responsible for reparation of injuries to passengers caused by ob- structions on the road, or by the fault or negligence of the trus- tees or their officers, servants, or contractors ; but since the case of Findlater, as reversed in the House of Lords, the prac- tice in such cases has changed.' In Imdlater's case, after re- viewing the Scotch cases on the subject, the Lord Chancellor ' Dargie v. Magistrates and Town Council of Forfar, March 1855, pp. 208, 212, 215. The Mayor of Lynn v. Turner, 1 Cowper's Rep., p. 86. Henley v. the Mayor and Burgesses of Lynn, Eegis. 3 Moore and Payne, p. 278. ' Per Lord Curriehill in Dargie v Magistrates of Forfar, ut supra. 3 Mackay o. Waddel (1820), p. 22. M'Lachlan (1827), p. 44. Findlateir v Duncan (1838), p. 55. Ix EEPABATION FOE INJURIES. said : " But when these cases are examined, it does not appear that there has been any solemn decision of the Court of Session establishing the law before this case. If the decisions had been of much earlier date, and of much more weight from repeated recognitions by the Court of Session, it might be the duty of this House to correct any important error which the House might find to have led to such a course of adjudication, but in the pre- sent case the House has not any difficulty to overcome. Inde- pendently, therefore, of authority, it remains to be considered what are the merits of the case upon the statutes under which the trustees act. The Turnpike Acts do not authorise the appli- cation of the funds levied under their authority in order to com- pensate for damages arising from any improper act of any person whilst employed under the authority of the trustees. Such an application of the tolls and funds would be a direct violation of the Act, unless it could be shown to be so clearly the law at the time the Act passed, as to justify the supposition that such an application had not been enumerated, because known to be inci- dent to the execution of the trust (which his Lordship held not to be supposed). But why should the trust funds be liable? If the thing done be within the power of the Act, the party sustaining any damage from it cannot be entitled to any compensation, unless the Act itself provides it, for this reason, that upon this supposition the Act creating the damage would be lawful ; and if the thing done be not within the power of the Act, either from excluding those powers, or from the manner of doing it, why should the public fund bear the burden of indem- nifying the guilty party? Many cases may be supposed in which the trustees may be so far actors in the transaction creating the damage as to render them personally liable, but none in which the trust fund ought to be applied in satisfying the party injured. The practice has now been in accordance with this decision.^ As regards harbour trustees and commissioners of police, the same principles appfy as were ruled in the House of Lords in the case of Findlater. In Harris v. Baker, which was an action against commissioners for maintaining, watching, and light- ing the streets ; for injuries sustained in consecLuence of falling over in the dark heaps of mud collected on the roads, the pur- ' Lord Chancellor in Findlater v. Duncan, p. 60 ; Ainslie, p. 70 ; Gordon, p. 70. LIABILITY OF MAGISTKATES AND TEtJSTEES. Ixi suer was non-suited. " If, by omitting to put up lamps when it is necessary, they (the commissioners) are guilty of a breach of public duty, they may be indicted for it. But to hold that every trustee of a road is liable in damages for such an accident as this, would, I conceive, be going further than any case warrants."^ In the case of the River Clyde Trustees, damages were claimed by a Shipping Company, caused by the alleged improper opera- tions of the Trustees by a partial dredging of the river, and by the omission or fault of the harbour-master, the defenders were assoilzied. The pursuer endeavoured to distinguish the case from that of Findlater, and written argument was allowed ; but the Court came to the same decision : " In the present case, as in Findlater' s case, the defenders act solely as Parliamentary Trus- tees over the estate committed to their charge. That estate is held by them, not for private interest or profit, but solely for the benefit and use of the public. It is not alleged that the defenders personally were guilty of any wrong, either in the excavation of the harbour or in the selection of the berth for the pursuers' vessel In both cases the Trustees have power to name over- seers, and the defenders appointed a harbour-master, whose ge- neraL qualification for the duty is not impeached; and in this case, as well as in Findlater's, the Trustees are very strictly limited by the terms of the statute, under which they act in the appropriation of the rates received by them." — " The remedy is against the individuals who committed the wrong, and not against the Trustees. This seems to be the import of all the cases in English practice, which are now held to be equally applicable to our law." The Court adhered.^ "When an injury has been sus- tained at a work constructed under statutory authority, and when not caused wilfully, nor by any act necessarily causing it, but arising from the uses of the work, it has been held that negli- gence must be libelled.^ In the late case, Gfibb v. The Trustees of the Liverpool Docks, the Court of Exchequer, on a writ of error, had the question of liability of the Trustees fully discussed. The damage was caused to a vessel entering the docks, from an accumulation of mud. The defence ■ Lord Ellenborough in Harris u. Baker, p. 12. 2 Lord Cuningham in New Clyde Shipping Co. v. Kiver Clyde Trustees (1842) p. 79 ; see also Metcalf v. Hetherington, 24 L. J., Exch. p 314, Dec. p. 327. ' Whitehouse v. Birmingham Canal Co. (1857), p. 282 ; Metcalf u. Hethering- ton, p. 327. ]xii EEPAEATION FOR INJURIES. latterly insisted on was, that the defendants, being a corporation created by statute, and deriving no emolument from or remunera- tion for the performance of a statutory duty, and having a discretion as to the application of the funds received by them, they could not be made liable for not choosing to exercise their discretion at any particular time in spending the funds in removing accumu- lations of mud. It was averred by Plaintiff that the Trustees had received sufficient funds to enable them, not only to remove the rubbish complained of, but also to perform their entire duty of main- taining, clearing, supporting, and preserving the docks, in addition to the satisfaction of all other charges, liabilities, and incumbrances in and about the same. " It may be doubted, (said Justice Cole- ridge, who delivered the judgment of the Court), we think, whether, coupling this averment with the allegation of the knowledge of the trustees, that the entries to the dock were dangerous, a state of facts is not shown under which they had a positive duty to perform, and not merely a discretion to exercise as to the remov- ing of the danger. But, at all events, we think that if they had a discretion under the circumstances to let the danger contiaue, they ought, as soon as they knew of it, to have closed the dock to the public, and that they had no right, with the knowledge of its dangerous condition, to keep it open, and to invite the vessel in question into the peril which they knew it must encounter, by continuing to hold out to the public that any ship, on payment of the tolls to them, might enter and navigate the dock." The Court held, further, that the fact, whether the tolls were received for a beneficial or for a fiduciary purpose, made no difference in such circumstances as to liability for the consequence of this breach of duty. The Trustees were held responsible.^ In Ruck V. Williams, which was an action against Improve- ment Commissioners for damage occasioned to property by the improper manner in which sewers had been constructed, and continued in an imperfect state, whereby the sewer burst and overflowed, causing damage, the defendants were found liable, the Court ultimately holding, from the authorities quoted, that it was " established, beyond aU manner of doubt, that there is a liability on the Commissioners to damages, when they are enabled to ' Gibb V. The Trustees of the Liverpool Docks (1858), p. 308 ; Parnaby v. The Lancaster Canal Co., 11 Ad. and Ellis, 223 ; Waid v. Lee, 24 L. J., Q. B. 142 ; Itchen Bridge Co. c p. 311. LIABILITY OP MAGISTRATES AND TRUSTEES. Ixiii reimburse themselves out of the rates for any consequences of acts done by them in the course of draining, which they are authorised by an Act of Parliament to do." — Judgment was given for the plaintiff.'- » Ruck V. Wmiams, 6th May 1858, p. 310; Ward v. Lee, 24 L. J., Q. B. p. 142 ; The Itchen Bridge Co., v. The Local Board of Health of Southampton, 27 L. J., p. 128. DIGEST DECIDED CASES. 6th February 1798. — David Innes, Pursuer, against Theinnes,^. Ma«. Magisteat M. 13,189. Magistrates of Edinbuegh and others, Defenders. — uiJenordtit. In rebuilding the University of Edinburgh, it was found necessary to dig a pit, about fifteen feet deep, in one of the adjacent lanes. The pit was at first watched at night, but afterwards was railed in on the east side, leaving an opening for carts getting into the pit. The opeidng was at first secured by a gate on hinges, and was locked by the work- men in the evening. It afterwards was found necessary, from the accumulation of earth, to change the gate to a fixed one, consisting of two fixed posts and three cross bars. These bars were in general put into the posts in the even- ing, and were fastened to them with nails. It appeared, however, that the gate had now and then continued open dur- ing the night, and that this had arisen sometimes from the negligence of the workmen, and at other times from the bars having been afterwards removed by mischievous people. The pursuer, who lived a few miles out of Edinburgh, had, while returning to his lodgings in Bristo Street, fallen into the pit, and got his thigh bone broken, besides being otherwise hurt and rendered incurably lame.. The accident happened about 8 o'clock in a dark night. It appeared in evidence that the pursuer had during the day taken some spirits, but there was no proof of his being intoxicated. The cause of the accident was not clearly made out, but it pro- bably arose from the cross bars of the east gate having been left out. The action was for damages on account of the injury. A 2 DIGEST OF DECIDED CASES. Innes, v. Mag. The Lord Ordinary found • ' that the proprietors canying u^encedPit. ' 0^1 ^^^ work which Occasioned the pit being made, from ' whence the accident arose, are primarily liable in damages ' on account of any improper neglect in having the same ' railed or secured so as to prevent danger ; and appointed ' the Trustees for the College, who were the proprietors in ' this case, to be called as parties.' This was done. The Magistrates pled, that as gi-eat precaution had been taken to prevent harm from the pit, the accident was to be considered as arising casu fortuito, and could not infer damages against any one ; and if damages were incurred, the architect employed by them could alone be responsible, as the Magistrates had no concern with the erection of the building. The Trustees also pled non-liability on the same grounds, and that their office was gratuitous, and the funds exhausted. The pursuer answered — That the Magistrates, as guar- dians of the police, were bound to see that in every operation carried on within the burgh, sufficient precautions were taken for the safety of passengers. Aixy failure in this duty subjected them in damages, and if there had not been some degree of negligence in this case, the accident could not have happened. The Court were divided in opinion with regard to the liability of the Trustees, but subsequently assoilzied them. They were unanimous in thinking the action weU founded against the Magistrates. One of their most important duties (it was observed) is to take care that the streets of the city are kept in such a state as to prevent the slightest danger to passengers. They are liable for the smallest neglect of duty, and, in this case, without some culpa on their part, the pursuer could not have met with the misfortune. The Court subjected the Magistrates, but reserved their claim of relief against the representatives of the architect and others who may have acted in the carrying on of the building. Damages fixed at £285, with £100 of expenses. DIGEST OF DECIDED CASES. 3 2 2d April 1799. — Bush, &;c. against Steinman. — Bush «. Stejn- 1 Bos. and Pul., p. 404. O^^r^Use liable for negli- mv I I. 1 genoe of cbii- ihese were two actions on the case against the defen- tractor's work- damt, for causing a quantity of Ume to be placed on the™'*'^' high road, by means of which the plaintiff and his wife were overturned and hurt. Plea, not guilty. The actions came for trial before Eyre, Ch. J., at the Guild- hall sittings after Hilary term. The circumstances of the case appeared to be as follow : — The defendant having pur- chased a house by the roadside (but which he had never occupied), contracted with a surveyor to put it in repair for a stipulated sum ; a carpenter having a contract under the surveyor to do the whole business, employed a bricklayer under him, and he again contracted for a quantity of lime with a lime-burner, by whose servant the lime in question was laid on the road. The Lord Chief Justice was of opi- nion that the defendant was not answerable for the injury sustained by the plaintiff under the above circumstances, but in order to save expenses, a verdict was taken for the plaintiff for £12, 12s., with liberty to the defendant to move to have a non suit entered. A rule nisi for that purpose having been obtained, the case was argued. Etkb, Ch. J. — At the trial I entertained great doubts with respect to the defendant's liability in this action. He appeared to be so fa? removed from the immediate author of the nuisance, and so far re- moved even from the person connected with the immediate author in the relation of master, that to allow him to be charged for tlie injury sustained by the plaintiff, seemed to render a circuity of action necessary. Upon the plaintiff's recovery, the defendant would be entitled to an action against the surveyor, the surveyor and each of the subcontracting parties in succ(3Ssion, to action against the person with ,whom they, immediately contracted, and, last of all, the lime- burner would be entitled to the common action against his own ser- vant. I hesitated, therefore, in carrying the responsibility beyond the immediate master of the person who conunitted the injury, and I retained my doubts upon the subject till I had heard the argument on the part of the plaintiff, and had an opportunity of conferring with my brothers. They, including Mr. Justice Buller, are satisfied that the action will lie ; and, upon reflection, I am disposed to con- cur with them, though I am ready to confess that I find great diffi- culty in stating with accuracy the grounds on which.it is to be sup- 4 DIGEST OF DECIDED CASES. Bush ». Stein- ported The relation between master and servant, as commonly Owner of house ®^^™-P'^ifi^'i ^^ actions brpiight against the master, is not sufficient ; liable for negli- and the general proposition, that a person shall be answerable for gence of con- g^jj„ injury which arises in carrying into execution that which hehas men. employed another to do, seems to be too large and loose. The prin- ciple oi Stove V. Cartivriglit (6, T. E. 411), with the decision of which I am well satisfied, is certainly applicable to this case ; but that of Littledale v. Lord Lonsdale (2 H. Bi. 299) comes much nearer. Lord Lonsdale's colliery was worked in such a manner by his agents' and servants (or possibly by his contractors, for that would have made no difference), that an injury was done to the plaintiff's house, and his Lordship was held responsible. Why ? Because the injury was done in the course ofTiis working the colliery : whether he worked it by agents, by servants or contractors, still it was his work ; and though another person might have contracted with him for the ma- nagement of the whole concern without his interference, yet, the work being carried on for his benefit, and on his property, all the persons employed must be considered as his agents and servants, notwith- standing any such arrangement ; and he must have been responsible to all the world on the principle of sic uteri tuo ut alienum non Icedas. Lord Lonsdale having empowered the contractor to appoint such persons under him as he should think fit, the persons appointed would, in contemplation of law, have been the agents and servants of Lord Lonsdale. Nor can I think that it would have made any difference if the injury complained of had arisen from his Lordship's coals having been placed by the workmen on the premises of Mr. Littledale, since it would have been impossible to distinguish such an act from the general course of business in which they were en- gaged, the whole of which business was carried on either by the express direction of Lord Lonsdale, or under a presumed authority from him. The principle of this case, therefore, seems to afford a ground which may be satisfactory for the present action, though I do not say that it is exactly in point. According to the doctrine cited from Blackstonis Comvientaries (L p. 431), if one of a family " layeth or casteth" anything out of the house which constitutes a nuisance, the owner is chargeable. Suppose, then, that the owner of a house, with a view to rebuild or repair, employ his own servants to erect a hord in the street (which being for the benefit of the pub- lic, they may lawfully do), and they carry it out so far as to encroach Tinreasonably on the highway, it is clear that the owner would be guilty of a nuisance ; and 1 apprehend there can be but little doubt that he would be equally guilty if he had contracted with a person to do it for a certain sum of money, instead of employing his own servants for the purpose ; for, in contemplation of law, the erection of the hord would equally be his act. If that be established, we come one step nearer to this case. Here the defendant, by a contractor; and by agents under him, was repairing his house ; the repairs were done at his expense, and the repairing was his act. If, then, the injury complained of by the plaintiff was committed in the course of making those repairs, I am unable to distinguish the case from .that DIGEST OF DECIDED CASES. 5 of erecting tlie liord, or from Litiledale v. Lord Lonsdale, unless, Bush v. Stein- indeed, a distinction could be maintained (which, however, I do not owneroTkoiase think possible), on the ground of the lime not having been delivered liable for negli- on the defendant's premises, but only at a place close to them, with g^°™ °* ""^^ a view to being carried on to the premises and consumed there, j^en.™^ ^°' My brother BuUer recollects a case, which he would have stated more particularly had he been able to attend. It was this : a master having employed his servant to do some act, the servant, out of idle- ness, employed another to do it, and that person, in carrying into execution the orders which had been given to the servant, committed an injury to the plaintiff, for which the master was held liable. The responsibility was thrown on the principal, from whom the authority originally moved. This determination is certainly highly conve- nient, and beneficial to the pubhc. Where a civil injury of the kind now complained of has been sustained, the remedy ought to be obvious, and the person injured should have only to discover the owner of the house which was the occasion of the mischief; not be compelled to enter into the concerns between that owner and other persons, the inconvenience of which would be more heavily felt than any which can arise from a circuity of action. Upon the whole case, therefore, though I still feel difficulty in stating the precise priQciple on which the action is founded, I am satisfied with the opinion of my Brothers. Heath, J. — I found my opinion on this single point, viz., that all the sub-contracting parties were in the employ of the defendant. It has been strongly argued that the defendant is not liable, because his liabihty can be founded in nothing but the mere relation of master and servant ; but no authority has been cited to support that pro- position. Whatever may be the doctrine of the civil law, it is per- fectly clear that our law carries such liability much further. Thus, a factor is not a servant, but being employed and trusted by the merchant, the latter, according to the case of Salkeld, is responsible for his acts. In Roseioell v. Prior (Salk. 460), an action for the con- tinuance of a nuisance was held to lie against the defendant, though he had underlet the building which was the subject of it, and though the plaintiff had recovered against him in a former action for the erection of the nuisance : for the Court said, " he affirmed the con- " tinuance by his devisee, and received rent as a consideration for " it." That case is analogous to the present, the ground of the deci- sion having been, that the defendant was benefited by the nuisance- complained of. It is not possible to conceive a case in which more mischief might aiise than in the present, if the various sub-contracts should be held sufficient to defeat the plaintiff of this action. EooKE, J., concurred. — There is such a variety of sub-contracts in this case as rarely occurs, but this serves to illustrate more strongly the mischief which would ensue should we depart from the doctrine in Stone v. CartwrigM. In that case,, and in LittUdale, the safest rule was adopted. The plaintiff may bring his action either against the person from wjiom the authority flows, and for whose benefit' the work is carried on, or against the person by whom the injury 6 DIGEST OF DECIDED CASES. ivsu d.Stein- -was actually committed. If the employer suifers by the acts of those Jwnerof'hoiise'^'^''^ whom lie has contracted, he must seek his remedy against them. iable for negli- Rule discharged, ;enoe of con- raotpr's work- lieu. Black ti. 9*^ February 1 804. — Black against Caddell. — M. 1 3,905. Cabdell. mfeiiced pit. Henry Black, tenant of Scotston, was retximing home on horseback in a dark tempestuous evening in January 1801. He travelled by a road leading through the estate of Grange, belonging to the defender, and fell into an old coal pit near the road, and was drowned. The pit had been opened by a former proprietor, but for many years had been abandoned. There was the remains of a wall around the mouth of the pit, about eighteen inches high. The pit was about four feet from the road, which road had been used by the pro- prietor, when the coal was formerly worked, but it was also frequent^ used by the neighbourhood, as the field through which it lay was unenclosed. An action of damages was raised against ^he defender, by the children of Black, for expenses, and for solatium. The pursuers pled — In the use of property, the safety of the neighbourhood must be consulted. Tlie owner of the land is responsible for the consequences, if from the result of operations he has made, it is possible for a man while pursuing his lawful occupation to suffer injury. Damages have been awarded to those who have suffered injury from falling into unfenced areas — (Innes, 6th Feb. 1798). Though the present proprietor be a singular successor of the person who opened the pit, he has himself used it, and it remained insufficiently fenced so as to make him responsible. The defender maintained — If a person in the use of his property, has wilfully done anything to the prejudice of his neighbour, he would be responsible. Assythment is meant as a composition for the commission of crime. The cause of death in siich cases must arise from the wilful act of the party from whom the assythment is due. There are many cases of negligence without which death could not have ensued, and yet where the person who commits the negli- gence, cannot be considered as the direct committer of the slaughter. These always go together to render reparatic^ DIGEST OF DECIDED CASES. 7 due — whenever an assyfchment is due, the homicide must Black ». be such as to be the subject of criminal jurisdiction. The pit injury from an was remote from any road by which the public had a right "'^™°^'*P''' to pass. It was fenced in a manner that the tenant whose cattle pastured there, made no complaint. In such circum- stances no liability lay on the defender. If, on the other hand, the public had acquired the right to the road, the tenants were bound to have seen that the pit was secured by the defender, or have done it themselves. No complaint was ever made by them. — The Court found the defender liable in damages subsequently modified to £800. 23d February 1809. — GflKiSTiE against Griggs, — • ohbishe». 2 Camp. 79. Oo<^hSent. The plaintiff was a passenger on the coach to London by the Blackwall stage. The defendant was the coach proprie- tor. The plaintiff was thrown from the coach by its break- down, through the snapping of the axle. The defendant proved a previous examination of the axle a few days before the accident, and that the coach was carefully driven. — Verdict for defendant. Sir J. Mansfield said — Where the breaking down or overturning of a coach is proved^ negli- gence on the part of the owner is presumed. He has always the means to rebutt this presumption if it be unfounded, and it is now incumbent on the defendant to make out that the damage in this case arose from what the law considers a mere accident; again, he says: If the axle-tree was sound, as far as human eye could discern, the defendant was not liable. 8th March 1810. — David Smith, Pursuer, against John smith ». Milne, Defender.— F. C, also 2 Dow, 290. inju^'"'f«,m openings in a wall. The defender had been employed to plaster a house built by a Mr. Scott, and to facilitate the carriage of his materials two openings were made at his suggestion through the wall of the house from an adjoining stair-case. The defender DIGEST OF DECIDED CASES. Smith v. Milne. njury from penings in wall. left the work in June 1802, and did not return till March or April 1803. He did not close up the openings, but other workmen continued to be employed about the house, and used the openings. .In August 1802, about a month after the defender left off work, the pursuer haying acci- dentally entered the work, through one of these openings, in the dark, fell through the floor, and had both his legs broken by the fall. He brought this action against the defender for damages. The Sheriff awarded ten guineas. In an ad- vocation Lord Meadowbank adhered, but fixed the damages at £100. — The defender reclaimed and pled, that workmen wfere not liable at all for such accidents, but only the owner, or the overseer of the whole work, — and the Court, on consi- dering petition and answers, altered. — The pursuer reclaimed, and the Court on 7th December 1809, returned to the in- terlocutor of the Lord Ordinary, on the ground that the defender ought to have fenced the openings when he left the work ; and that every person concerned in the opening of the wall was liable in solid.wm to any person who might suffer by its not being properly fenced, but considerable doubt was entertained whether the contractor or owner might not be liable in relief ; and to this interlocutor the Court finally adhered. — The decision was appealed to the House of Lords, and reversed on the ground that Milne was bound to provide against accidents only while his workmen were on the premises, that this duty, on his leaving the work, devolved on the proprietor, or the workmen next employed, and that the responsibility did not attach to the first opening of the passage, but to the subsequent neglect. ^iLL. Km™" lOfch June 1 812. — Lord Keith, Pursuer, against William )amagebyfire. Keijj^ Defender. — F. C. Mr Keir purchased the farm of Keir, on the estate of Culross. Lord Keith purchased the farm of Praybrae, which was part of the forest of Culross, and on which some wood was standing. Mr. Keir, in proceeding to improve his pur- chase, found it necessary to grub up a great quantity of brush and heath. He was living in Roxburghshire, and DIGEST OF DECIDED CASES. 9 had given positive orders to his servants, and those em-^"*"^'™* ployed on the Keir farm, not to use fire in their improving Damage by flre. operations ; but, in opposition to these orders, his servants began to burn some of the brushwood, for the purpose of accelerating the clearing of the ground. It was alleged that every precaution was used to prevent accident from the fire ; and the farm was surrounded by a stone wall of four and a half feet high. The heath round about thei place where the fire was applied had been carefully re-, moved ; the day was calm, and the nearest part of the forest was distant 400 feet. At breakfast time the ser- vants left their work, and at that time all appearance of fire had disappeared. About 10 o'clock a breeze sprung up, and shortly afterwards the wood in the forest was on fire. Lord Keith pursued Mr. Keir for damages, on the ground that the fire was occasioned by his operations, and that he was liable for his servants. — Defence. That as the fire was used by his servants contrary to his express orders, and in his absence, he was not liable for damage thereby occasioned. After a proof had been led, the Lord Ordinary repelled the defence, and found damages due. Mr. Keir petitioned, and maintained that, even supposing that a master is liable for damage done by his servants acting contrary to express orders, still the defender ought not to be made liable here. The operation itself, and the means used to accelerate it, were perfectly innocent, and common. The servants were not versantes in illicito. Fire had been long employed for the purpose of agriculture, and its use is recognised, both in the ,Koman law and in ours, as a means of improvement perfectly allowable and innocent. It was used with caution, and no danger was apprehended from the appearance of the weather or otherwise ; and those applying it are not respon- sible for damage that may be occasioned by a sudden rising of the wind, or otherwise. This was also the law of Eng- land (Raymond's Reports, p. 264, TuherviUe v. Stamp). The damage that the fire afterwards occasioned merely arose from a dainnuTn, fatale, which no human foresight could prevent. Besides the common law, it was maintained that, by the 1 4th Geo. III., c. 78, the defender was protected from lia- bility, that statute declaring that ' no action, suit, or process 1 DIGEST OF DECIDED CASES. Till ^mR *' ' whatever, shall be maintained or prosecuted against any lamagebyfire. ' person, in whose housB, chamber, stable, barn, or other ' building, or on whose estate any fire shall accidentally ' begin ; nor shall any recompense be made by such person ' for any damage suffered thereby, any law, or usage, or cus- ' torn to the contrary notwithstanding.' The Court adhered, being unanimously of opinion that the use of fire, in the situation in which it was employed, was an extraordinary act of administration, and that they bad no doubt that, by the servants having used it, whether prohibited or not, their master was liable for the damage that occurred. ' - Note. — Lord Justice-Clerk Boyle, in Baird, 4tli July 1826, states that the Eeport of this case is inaccurate where it states that Mr. Keir gave Orders to his servants not to use fire in their operations. BBo^vlf V. 26th February 1813. — Mrs. Isabella Drummond or Brown oaoh accident, and CHILDREN, Pursuer, against Alexander M'Gregor and Others, Defenders. — F. C. Alexander Brown, perfumer in Edinburgh, being a pas- senger on the top of the Mercury coach to Glasgow, was killed by the overturning of the coach, in consequence of coming in contact with a post chaise, while both vehicles were driving at unusual speed. An action was raised for reparation by the pursuers, the widow and children of the deceased, against the owners of the coach. The Lord Ordinary found the proprietors of the coach and chaise conjunctly and severally liable in damages. The defender reclaimed, maintaining that the fault of their servants was not of a description that rendered them re- sponsible for any damages to the pursuers ; but that, at all events, from Mr. Brown's exertions in business having ceased to be serviceable to his family, the damages ought to be di- minished. The Court entertained no doubt as to the law of the case. They were unanimously of opinion, that when damage was sustained by the unskilfulness, malversation, or culpable negligence of servants in matters entrusted to their care, the masters are liable. A question arose as to the DIGEST OK DECIDED CASES. 11 amount of damage to be allowed. — Lords Meadowbank and j^S"^" "' Pitmilly thought that the loss of a husband or father was Coaoh accident, not to be estimated merely by the pecuniary advantages which the family derived from his exertions — he was not to be considered merely as if he had been part of the goods in his shop — a man may be a burden instead of an advantage to his family, and yet if Jiis life be improperly taken away, the Court must give damages in solatium of the wounded feel- ings and affection of his relatives, which were surely of deeper importance than the tangible injury that could be sus- tained from the loss of emoluments derived from his exertions. The Lord Justice-Clerk concurred, and referred to the case o¥ MacJc v. Oaddel (9th Feb. 1 804), where this principle was given effect to, and where L.800 was awarded. The Court adhered to the Lord Ordinary's interlocutor, awarding L.200 to the widow, and L.130 to each of the children. loth April 1815. — Harris against Baker. — 4 Maule and harkisi'. Selwyn, p. 26. ^--, The defendant was the clerk of the trustees for maintain- ing, watching, and lighting the Commercial Road, &c., and the plaintiff pursued for damages, in consequence of his wife having fallen over a heap of dust collected on the road sides, near the plaintiff's house ; and, 2dly, having allowed a heap of earth and gravel to continue on the said highway, during the night time, without placing any light or signal at or near the heap, whereby the plaintiff's wife fell over it, and broke one of her arms. — At the trial Lord Ellenhorough Said, the fact seems to be, that the highway had been cleaned in the beginning of May, and in doing so, the labourers heaped the scrapings in round heaps between two and three feet high, and about two yards asunder on the sides of the road, and some stood on thfe side near the plaintiffs house and shop, and remained for nearly a month. These were stated to be an annoyance to the passengers. In the evening after dark, there being no: lamps by the road side, the plaintiff's wife fell over one of the heaps, and broke her arm. His Lordship was of opinion in this case, that the against Road Ti-ustees. 1 2 DIGEST OF DECIDED CASES. Harris v trustees Were not liable in damages, they being so far te- Damage moved from the cause of it, and he directed a non suit. ^Trua*t^*'* A new trial was moved for ; but the rule was refused — Lord Ellenborough. — It does not appear by the Act of Parlia- ment that this action is maintainable against the trustees. The Act indeed empowered them to cause such number of lamps to be pro- vided as they shall think necessary ; but suppose they did not think it necessary to provide any lamps, can it be said that an action would lie against them on that account. If by omitting to put up lamps, when it is necessary, they are guilty of a breach of public duty, they may be indicted for it. But to hold that every trustee of a road is liable in damages for such an accident as this, would, I conceive, be going farther than any case warrants. Le Blanc, J., concurred — In Bush v. Steinman the lime-burner's servant who committed the nuisance from which the injifry arose, was considered as being in the employment of the owner of the house, and working for his benefit, and that the owner was bound to see, that those employed by him did not cause or commit any nuisance. .iNwooDB. 14th May 1817. — Jane Linwood, Pursuer, against Vans iTHORN, (fee. •' ' ' O image by Hathorn and others, Defenders. — F. C. ling of a tree. John Linwood, tenant of Freugh, while proceeding along the high road to Stranraer, was killed by the fall of a tree cut on the estate of Garthland belonging to the deferlder, Mr. Hathorn. The widow raised an action of damages against Mr. Hat- horn, the proprietor of the estate, and against John Hathorn and William Keid, through whose intervention, directions, express or implied, had been given to cut down the tree ; and Peter Mackie and Mathew Graham, the persons by whom the tree was actually cut down. After a proof had been led, the Lord Ordinary reported the case — ^Mackie and Graham did not dispute their share in the transaction, they cut down the tree at the side of the public road, during the day, while persons were going along to the public market. It appeared that William Eeid had marked the tree to be cut down, and would have been present had he not been otherwise engaged. John Hathorn, had died during the dependence of the action, and no transference had been brought against his representatives. The fact that all those connected with cutting down the trees were made parties, DIGEST OF DECIDED CASES. ] 3 by preventing their evidence being got, left this branch of Linwood v. the case with imperfect proof, William Reid had been Damage by employed in such occasions as wood forester, and had marked ^^''"^°*°''™^' the trees intended to be cut down. After the event Mr. Hathorn continued all the parties in his employment. The pursuer maintained that the proof established that the tree was cut down by two of the defenders, within a few yards of the high road, without any warning being given to the passengers, and without any precautions being taken to prevent injury to them. The defender John Hathorn, w'ho had a general superintendence of the proprie- tor's estate, sent a message to William Reid, employed on the estate, to cut down trees, though not this particular tree, and Reid marked the trees to be cut, and employed Peter Mackie and Matthew Graham to cut down the tree. Al- though there is nothing illegal in the act of cutting down a tree on the side of a public road, it is an act which is legal or illegal according to the adoption or neglect of the neces- sary precautions for the public safety. Due warning is absolutely necessary to constitute the legality of an act which, in other circumstances, might have been exercised without any such precautions. This was not a case of casus fortuitus, but a highly culpable piece of carelessness impos- ing somewhere a liability for damages. The acquittal of Graham by the criminal Court is not a res judicata, as the absence of that positive* intention to injure constituting crime, does not exclude his being chargeable with that de- oree of culpability in the civil sense subjecting him to reparation by damages. A master is not liable for the crime of his servant, but he is liable for all the injurious consequences arising from neglect or carelessness in the performance of all acts in themselves perfectly lawful done in his service. This is the implied contract under which every man acts or possesses, and he cannot relieve himself from its obligations by exercising these acts of possession by delegation instead of in person. Although Mr. Hathorn gave no precise authority for cutting down this particular tree, and even supposing it done contrary to his wishes, still if the operation was performed by the direction, or concurrence of the persons employed in 14 DIGEST OF DECIDED CASES. :-iNwooD V. the management of his property acting bona fide for his be- image by ' hoof, he must be responsible. lingofatrea. rpj^^ defender Hathom pled— This was as strong an in. stance of casus fortuitus as can be imagined. There was every presumption that the tree would fall into the field, and not into the road, and the whole operation was more visible from tlie road than to those cutting the tree, one of whom was placed for the very purpose of giving warning, and there was no appearance of danger until the tree was precipitated into the road', by the unexpected rising of the wind : Deig. lib. ix. tit. 2, 1. 30, sect. 3. Such warning is only necessary to put passengers on their guard, whether given by the tongue, the hand, or the visible or audible obviousness of the danger itself The acquittal of Graham, who was the only agent in cutting the tree, by the Justiciary Court, is conclusive as to his innocence, and must be so likewise as to the others. Assythment is not due, when, after trial, the person accused has been acquitted. ^ — Hume's Com. vol. i., p. 448. The defender himself was residing at a distance, and gave no orders for cutting down the tree, on the contrary it was against his wish that it should be cut down. The proof does not establish that John Hathom had any general man- agement of the proprietor's estate, and he certainly had no power to cut the wood, a power which no proprietor dele- gates to any one. It is not prdVed that any orders were given by John Hathorn to William Keid to cut the tree ; and William Reid's general superintendence of the woods, to see that no damage was done to them, had ceased a year and a-half before the accident. Peter Mackie, although the defender's servant, was so for a particular purpose only, vidth no power to employ others ; and Matthew Graham never was the defender's servant. The finding a master liable for the unskilful or negli- gent performance of an act in his service, even when par- ticularly authorized by him, is a stretch of presumed delin- quency, a good way beyond the rules of natural justice (Bankton, lib. 1, tit. 2, sect. 30). But it is a much more violent stretch of constructive obligation, to make a master responsible for the general fitness or prudence of his servant DIGEST OV DECIDED CASES. 15 iu the discharge of any general or permanent duty, and Liwood ». liable in damages where he commits an injury for want of Damage by these qualities, whether in his master's presence or not * "6° »• (Stair, Kb. 1, tit. 9, sect. 5 ; Karnes' Principles of Equity, lib. 1, part 1, c. 1, sect. 2, p. 63), M'Manus against Cricket, 25th November 1800, East. The exceptions, for the sake of expediency, from the general rule that culpa tenet suos auctwes, are very few, as in the case of a tradesman, inn-: keeper, and the like, who are liable for their servants ex contractu, because the work has not been duly performed; or where a master employs a servant, knowing him to be unskilful or dishonest, or orders him to do a thing which is wrong; though lawful for the servant to do. Btit the general rule applies where no contract can be pleaded, and where no blame is imputable to the master. Even in rude times, when the slave was the mere instru- ment of the master, and had no property of his own, some remedy was provided against unlimited Uability, (Inst., lib. iv., tit. 8, cod. 1. iv. An serv., pro suo facto, Pand. 1. xv.. Be cond. furt). Masters were afterwards found not liable, unless for servants hired for a term {Galbraith v. Anderson, 12th Jan. 1617, Kerse, M. 13,924 ; Murislaw v. Halihur- ton, 2 8th March 1623, Haddington, M. 1 3, 9 8 4). And their liability afterwards ceased altogether, unless culpa could, be brought home to them, or when responsibility was created by contract, {Ca/mphell v. Barrie, 15 th July 1748, Killcer- ran, M. 1 3, 9 8 7 ; Thorburn v. Mlis, 2 4th May 1811. Sta-ir,; lib. iv., tit. 9, sect. 5 ; Bank., lib. iv, tit. 2, sect. 30). 1 Informations were given in for the other defenders, plead- ing that the accident was altogether a casus fortuitus, and' that there was no culpability in the operation of cutting the tree appearing from the proof; and reference as to the law, of the Case was made . to the . information of Mr. Vans Hathorn. The principal object of the pursuers was to make him liable. LoED GlbnTjEE. — 'As to the fact how far Mr. Vans Hathorn had given instructions to cut this tree, I should think, from the proof, that he had not, or rather that he did not mean to cut trees at all in that place. It is equally clear that Eeid was in the habit of doing business of that kind for him ; but it is not necessary to go into that ; for I own, as far as concerns Mr. Hathorn, I have great doubts if he- 16 DIGEST OF DECIDED CASES. LiNwooD V. would have been liable if lie had given orders to cut this tree. Where Dami^e'by ^ person employs another to do an act, which in its own nature is ailing of a tree, unlawful, he is answerable for what may happen in consequence — there can be no doubt of that. There is also a certain order of cases, where you cannot say that the person is versans in illicito; but still there are certain precautions requisite to be taken to prevent injury to others, which, if neglected, will subject him in damages. It is well remarked in the papers, that there is a distinction to be observed in such cases. There are certain things which, from their univer- sality, and the necessity of their being done, have precise rules point- ed out for doing them, which every person is bound to follow ; and a person neglecting them is blameable, and the employer will be answerable, though he employs rational and skilled persons to do them. But there is a great variety of cases of a different kind, where precautions may, no doubt, be used, but where much may depend as to the nature of the precautions, or circumstances occurring at the very time of doing the act, and where it is impracticable to give in- structions beforehand as to what is to be done. All you can do is, to take care that it be done in such a way that every person employed will take the proper precautious. As in the case of a person repair- ing the roof of his house, or altering a building in a town, it is not an illicit act to throw the rubbish into the street, but it is necessary to have some person to warn the passengers of their danger. If a man employs a person to repair his house, and he actually has a proper watch to warn the people, accidents may still happen ; the person warned may be thinking of something else, and not attend to it. No doubt, if the person giving the warning is very active, he might remedy it, but his employer could not- be liable, if from some accident he did not. In general, it is perfectly impossible to think that, with any care, all accidents can be prevented : if you avoid those that are most likely to happen, and take proper precautions for others, this is all that can be required. I don't see how the common operations of life could go on otherwise, if a man could never do anything without risking his fortune from some accident that may happen. As to the accident here, the cutting the tree near the road, and even letting it fall into the road, is not aversatio in illicito; but it was a reasonable precaution to exact, that some person should warn the passengers of the danger. I will not say how far the neglecting that would render the proprietor liable ; it might be presumed that the person employed would attend to it. But, suppose that he is bound to do so, I doubt if he is liable for every accident where the precaution has been ineffectual. Suppose the accident had happened in this way — that the head of the hatchet had flown off and killed the man — this might have been very careless on the part of the wood- man, as he ought to have seen that it was secure ; but is his master to be liable because he should have told him to go to the smith ? This is one of those things which it is unreasonable to exact ; and it ought not to come against the master, but the individual guilty of the negligence. I see very well, in this case, that Graham and DIGEST OF DECIDED CASES. 17 Mackie acted with sufficient precaution, and I doubt if any reason- Llnwood v. able person would think of more. One was employed in cutting p^™°^'^°g the tree, and the other could be there for no other purpose but to tell falling of atree. people of their danger. I ha-ve no idea that' the proprietor, in cut- ^tether owner ting a tree, so as to fall on the road, is doing a wrong act ; but to be '* sure you are to dress it immediately, and not allow it to remain. I rather suppose the high road is the proper place for its falling, and not among the other trees. It is requisite, however, to have people to warn of the danger ; but passengers having been able to see the proper precautions going on, I think everything was done that it was reasonable that the proprietor should be responsible for having done ; and it is haid that, for a mere accident, he should |)e liable in damages. As to Reid, the case is very slender against him. As to the others, the one that was actually cutting was employed, and could do nothing else, and Mackie was the only person to blame ; but a thousand accidents may have occasioned it. I am rather incUned, therefore, to consider this as a pure accident ; and, upon the. whole, I am for assoilzieing all the defenders. Lord Craigib. — This question appeared to me from the beginning, and it does so still, very clear against all the defenders. The work of cutting large trees on the side of a high road must be hazardous, and great attention is necessary ; if that is neglected, it will subject in damages. There are authorities to show that this was the civil law. {De lege Aquilia, Inst, iv., tit. 3, sect. 5.) In addition to this, it appears from the proof, that so far from giving notice, some of the passengers said, they ought not to go farther without giving notice. Upon the whole, it appears to me that it is against law that any one of the parties can be assoilzied. I doubt if . Mr. Hathorn should be made ultimately liable, as Eeid was liable, as he undertook to see the tree cut down ; but there is no doubt that the whole are liable to the pursuer. Lord Bannatyne came to the same conclusion. Lord Justice-Clerk. — As to John Hathorn, there is no evidence that he ordered the tree to be cut. But as to Mr. Vans Hathorn, attend to the proof. It will not do where the liability is to be brought home to a proprietor to say that it must be presumed to be done by his order, because it would follow, that whatever is done either with or without his consent, he is to be liable for the conse- quences. This is not founded in the law of Scotland, nor in the Eoman law, nor, I wUl venture to say, in the law of any civilized country, because if an act done in direct opposition to his orders is to subject him to an assythment, it would be establishing a doctrine requiring a long train of decisions to establish. On the case of Lord Keith, if it is correctly reported,' I must say that with all the respect I have for the other Division, I hope it is allowable for me to hesi- tate as to the propriety of the decision, because I understand from the report, that the burning was in opposition to the orders of Mr. Keir ; and yet it is said, that the Court were clear that he was re- sponsible- I shall just say, on looking at the argument drawn from B 1 8 DIGEST OF DECIDED CASES. LiNwooD V. this case, that it appears to me a very special case, and that too much lATHORN, &c. caution cannot he used in following it as a precedent. If it is meant illingof atoe.^o ^^ l^i"! down in general, that servants, acting in opposition to orders, are to suhject their masters, I cannot accede to the doctrine; hut I must own I have very much the same view as Lord Glenlee, that none of the cases quoted have the most remote connection with this case, because not only is there a defect, in not bringing home the positive orders to Mr. Hathorn, but the best reason to think that he would not have allowed a tree to be cut in that situation. But in the absence of this evidence, you have the question of construc- tive liability as proprietor. In the first place, it is not an unlawful act to cut a tree, even on the side of the high road, if due precaution was taken, which we must presume was the case here. But none of the cases quoted touch the principle here; nor does that case of Caddell, with regard to damage from a coal pit, touch it either. A coal pit too is dangerous at all times, and particularly, when it is left in a deserted state ; and, at common law, the Procurator Fiscal may apply to have open pits filled up, or otherwise secured, and this was done by the late Sheriff of Linlithgow, as to all the open pits in the county. The proprietor is bound to know the danger to the pubhc, if left in a neglected state, as in the case of Caddell ; and the Court had no difficulty in finding that he was answerable for the conse- quences of leaving it in that situation, not only on the road, but on the edge of it. As to stage coaches and vessels, they contract for the safe conveyance of the lieges. In Broion's case it was a race her tween the coach and a chaise ; the proprietors were found liable on that responsibility ; and the liability was brought home to the owner of the chaise, as he was warned that the person was drunk, and yet he allowed him to drive. Ag to the case of Milne, the judgment was reversed, so it is out of the way as a precedent. It was, how- ever, decided on the same principle, that a person struck out a dan- gerous opening in a house he was building, and took no precaution to preveflt injury ; but it was quite a different case from this. The case of Innes went on the principle of the guardians of the pubHc police being bound to prevent injury to the lieges, as it was not against the trustees for the buildings, but against the magistrates. None of these cases, with the exception of that of Lord Keith, sup- port the present action. Mr. Hathorn states that he was ignorant of the operation, gave no authority for doing it, and could give no directions as to the precautions to be used. I have no doubt, from the humane feelings of him and every other gentleman, he would have done so if in his power ; and the trees were afterwards sold by public roup, so that they were not cut for any purpose on the estate of Garthland. Taking the facts as made out against him, I do not think, you can hold that he gave authority for the act. On the other hand, I do not think there was that neglect on the part of the actual operators so as to subject them. But even if there had been such neglect, at least in Reid, the question as to finding Mr. Hathorn liable is one where the Uability is not supported by any authority of the law, certainly not by the law quoted by Lord Craigie, wliich DIGEST OF DECIDED CASES. 19 goes only to the persons actually employed. I donot see anyautho- LiNw:oop,». rity in our own law,,pr in the Roman law, and no case, with the Hathobn,^c. exception of that of Keir, which, no doubt, does apply in some de-faui^gff atree. gree, but to which I have already said I do not accede. Although regretting much this ^ccideat, and the loss to the pursuer, I do not find myself entitled to sustain her action against all or any of the defenders. The Court being divided in opinion, the case was again advised. LoED EoBERTSON said. — The pursuer has brought an action for reparation by way of damages, for a grievous loss sustained by her. In that action she has called Mr. Yans Hathorn and several others as defenders, and I am persuaded the pursuers were aware that though they have called the others, it, was not from them they ex- pe)3ted reparation. It was to jVTr. Hathorn, and to him alone, that they must have looked for damages ; — I cannot help thinking it was done with the view of depriving him of their evidence. It appears to me that the priucipal defender is the person least culpable. Whether proper precautions might have been taken by those actually employed to prevent such, an accident, I will not now inquire. As to Mr. Hathorn' personally and individually, he had no concern in the unfortunate accident at all, hp was living at a great distance, and knew nothing about it. But it is said that he ivS liable for the damages occasioned by the carelessness of those employed by him. 'So doubt there are cases, and not a few of them, in which a person is liable for the damage occasioned by the' carelessness of those eniployed by him. This is the case of artiiicers, of owners of a ship, who are liable for the acts of the master and seamen, and a proprie- tor of a stage coach, who is a,nswerable for the skilfulness of the drivers. But I apprehend, that in all these cases, the liability arises ex' contraotu, incurred in consequence of his having failed to fulfil the object which he contracted for. The owner of a stage coach un- dertakes to convey the passengers safely;, and if he employs- unskil- ful persons, through, whose fault an accident happens, he must be liable in damages. There is no such contract iu the present case. There may, no doubt, be figured other cases, where without a con- tract, the master may be Hablefor the acts of those employed. The case of a person employing another to dig the foundation of an urban tenement, and where, by his unskUfulness, the gable wall of the next tenement is damaged, I apprehend he might be liable for the daiilage, but then there ■ must be evidence of an actual employment of the tradesman by whose unskilfulness the accident has happened. Bdt I find no evidence of the actual employment by Mr. Hathorn of any persons to cut down the tree. If we were to go the length to say that a proprietor of a large estate is to be liable in -damages for every piece of work done by persons on 'his estate, without any direct com- mand, I apprehend we would be laying the foundation for a danger- ous doctrine indeed. None of the cases quoted apply, for in almost 20 DIGEST OF DECIDED CASES. LiNwooD ». all of them the damage was done ex contractu, as particular Hathorn, &c. tije case of Broien. I am, therefore, for assoilzieing the defend Damage by faiiingijtatree. ^^ Court Sustained the defences, and assoilzied the fenders, and adhered to this interlocutor, on advising a ; tion and answers. Allans. ^^^^ ^^^^ 1819. — ALLAN against M'Leish, &c. — 2 M M'Leish. p. 158. Damage by stage coach. This was an action of damages against the proprietoi a stage coach, and the guard and driver, for injury don the overturn of the coach. The defence was, — the over was an accident, for which the defendeis are not answer The issue sent to trial was, — Whether, on or about 25th July 1818, the Waterloo Coach, of which the def ers are proprietors or contractors, was overturned betv the North Queensferry and Inverkeithing, in consequent the neghgence or improper conduct of the coachma guard, whereby the pursuer, then a passenger in said cc suffered bodily harm ? — Damages claimed for medical pense, L.200 ; for solatmrn,, L.5000. The coach, soon after leaving the north side of the Que ferry, was proceeding with great velocity, and in turni comer was overturned. It appeared that the coach wished to pass a gig upon the road ; and there were s witnesses called to shew that the pursuer, who was the outside of the coaeh, had urged the coachman to di A number of the passengers were hurt, and the put much so. Jeffrey, for the defender, said this was an ac against the proprietors solely for the negligence of their vants ; he did not deny they were so liable, but in view the damage ought not to be vindictive. The quej is, Whether the injury has been occasioned by the culj negligence of the driver ? Proprietors are not liable for dent, and, from what he should prove, this must be he! an accident. The coach was not furiously driven, an< shall prove that the pursuer urged the coachman to dri Forsyth. — The proprietors are liable for the conduct of thei] vants. If the pursuer urged the driver to go too fast, he c not to have complied. BI6EST OF DECIDED CASES, 21 L. C. . Commissioner. — Held the law to be properly stated in the issue. The question is, negligence or improper conduct. The pro- prietors are bound to find proper persons to conduct the coach, and if they fail they are liable in dajnages j but it is a mere civU ques- tion of reparation, not of punishment. On the question so much argued at the bar, whether the pursuer is cut out of his redress, by his conduct in exciting the driver to push his horses, I think both sides go beyond the mark. Proprietors are bound to- find persons, not only capable of conducting the coach properly, but who will not be excited to improper conduct. If the person appointed yield to the excitement, they must repair the damage. The question of da- mages may be materially affected by the pursuer's conduct; but I, cannot say that there ought to be a verdict for the defender, as, if the pursuer's conduct were a bar to the action. It was stated in defence, that the overturn was occasioned by a stone on the road, but from the evidence I think you will be satisfied that it was occasioned by the natiire of the situation, together with the quick driving, whatever was the cause of that quick driving ; and consider- ing the evidence, you must say whether the overturn was occa- sioned by the negligence or improper conduct of the coachman or guard ; and if you are satisfied that it was, a verdict must foUow for the pursuer ; as I state to you, as matter of law, that the excitement by the pursuer only goes in diminution of damages, not as a bar to the action. Verdict for the pursuer, L. 200 for medical attendaiace, and L.1000 for damages and solatium. Allan v. M'liEiaH. . Damage by- overturn of. stage coach. . GUNN V. 2Sth February 1820. — GuNN against Gardiner, &c. — GAKoraER. Mur. 2, p. 194. otJS ^i1 stage coach. This was an action against the proprietors of a stage coach, and the guard and driver, on account of the negli- gence, carelessness, or improper conduct of the guard and driver. Defence. — The coach was not overturned by any cause for which the proprietors are liable. The issue was, — Whether the coaeh was overturned in consequence of the negligence, rashness, or improper conduct of the defenders, or any of them. In the beginning of 1816 the Telegraph Coach was over- turned, on the road between Edinburgh and Glasgow, near the Inn at Airdrie, by going over a heap of stones on the road. The pursuer was a passenger, and having sustained injury, pursued for damages. The pursuer stated that he would prove negligence on 22 DIGEST OF DECIDED CASES. Guns v.^ ^jjg pgj^ of the driver and guard amounting to delinquem Damage from for wMch the defenders were liable. overturn of a atage. coach. ^^ j^^^^ q COMMISSIONER. ^The law on the subject is, that p prietors undertake to furnish every thing necessary as to horses a carriages, and proper persons to manage' them. The proprietors eventually liable for the misconduct'of the servant. The propriet are not liable in' the case of pure accident. The jury must theref consider whether it is a case of pure accident, or whether it is a, c of negligence or improper conduct. If the coachman was dru. there is a clear ground of decision ; but if not, there is no clear « dence of rashness. The question as to negligence may be applioal not only to the servants, but to one, at least, of the defenders, -v Uved close to the place where the stones were on the road. If i think the coachman not in a fit state to conduct the coach, or t his conduct was improper, you will find for the pursuer ; but if i think the coachman was fit for the situation, and that the sto ought to have been- removed by others, then you will find for defender. Verdict for the pursuer, L.150. Mackay v. Waddell. against Boad Trustees. 29th February 1820. — Mackay against WADDELLpam Others. — 2'Mur., p. 201. The coach proprietor (in Gunn's case) brought an acti of reKef against .Waddell for. laying down the stones on i road, and, secondly, against the Road Trustees, for imprope allowing them to remain on the road. Lord C. Commis^ionbb. — ^The stones were laid on the road, and question is, whether they were improperly laid? The custom of country is important in this branch of the case, and custom seems sanction what was done ; but if materials are laid down, they m be laid with common care and attention, and ia such a way as : to be liable to be turned out pf their place by others. It was s the question was, whether the stones were the cause of the accide but that is not the proper way of putting it. There is a great difi ence between the cause and a cause. There is no doubt the coi was overturned by running on the; stones, and thatdt might h avoided them ; but ; we have no evidence, to show that the coi would have been overturned if the stones had not been there,, s we must presume that it would not. The second issue involves a most important matter of law, a refers to all Eoad. Trustees in the kingdom; and I should- be sorr we could not put this case in a proper shape, to' have the quest tried. The question turns on the evidence, and upon your opini whether the- Trustees allowed the stones to remain, and whet DIGEST OF DECIDED CASES. 23 they allowed them improperly to remain % — (He referred to the evi- ■_^"'"'' "• deuce). I shall not decide whether Trustees are bound to know j)^^g^' what is upon the road, but I think the law is in such a state as to against Koad make it proper for me, in this case, to submit the evidence to you ; Trustees. and one can hairdly suppose the stones were there for a week without the Trustees knowing it. The presumption ie, that they were seen by the Trustees and the Surveyor ; and his seeing them, and having communication with the Trustees, is an additional circumstance. The jury found that the Trustees improperly allowed the stones to remain on the road for two or three weeks, that the coach, coming into contact with them, was overtumedj whereby Gunn suffered severe bodily injury. 18th March 1820. — ^Anderson against Pypee and Co. — Anderson ». ° Pypee. 2 Mur., p. 261. Damage from the overturn of Action of damages against the proprietors of a stage coach, and the guard and driver, by the pursuer, a passen- ger, hurt by an overturn. .Defence. — The overturn was occasioned by a defective axle, for which the defenders are not responsible. Issues. — ' Whether the coach was overturned in consequence of the ' negligence or improper conduct of the said coachman or ' guard driving the said coach, whereby the, pursuer sus- ' tained bodily harm? (2.) Whether .the said coach was 'overturned in consequence of one of the axle-trees being ' badly constructed, faulty, defective, or composed of insuf- ' ficient materials? (3.) Whether the alleged faulty and ' defective construction of the said axle-tree, and the insuffi- ' ciency of the materials, by which the accident is alleged to ' have happened, arose from the inattention, negligence, or ' misconduct of the said defenders, or persons acting for ' them?' Alison. — At common law the proprietors of a coach are liable for damage done by any defect in it, whether visible or not, as well as for negligence or improper conduct of their servants. Besides, there is a statute (50 Geo. IIL, c. 48) regulating the number of passengers, &c., and to prevent them sitting on the luggage. MoNCKiBFF. — Maintained, that the defenders were not liable for a latent defect ; that the furious driving and overloading was dis- proved by the . piwsuer's witness; that if a passenger sat on the luggage there was no necessity for doing so, and that the plea founded 24 DIGEST OF DECIDED CASES. Anderson v. qu the statute was a new one, brought out now for the first ti: Damage" from ^^ *^® coach had been top-heavy, the plea might have applied. the overturn of LoRD COMMISSIONER. — The act gives its remedy, but does not ap a stage ooaoh. tg this case. MoNORiBPF. — The question here is the state of the coach bei the accident, and all the evidence applies to the appearance of iron after the accident. In England, Sir J. Mansfield held that, injury being proved, the presumption was against the proprietc (Christie v. Greggs, 2 Camp. 79). But in^this country it is necess to prove some negligence on the part of our neighbours to enable to claim reparation — it was a damnum fatale, or absque injm There is no evidence that the flaw existed before the coach ] Queensferry. We shall prove that we furnished a sufficient coa and were attentive inspecting it ; and there is no warranty of s conveyance of passengers, as there is of goods. Jeffrey. — The pursuer paid for a conveyance in a sound coa and had been put into an unsound one. Though he did not ma tain the liability of the proprietors for a pure accident, arising fr some external cause, yet he held them liable if they furnished ins ficient horses, carriages, &c., whether they knew it or not, in 1 same manner as the owners are liable if a vessel is not seawortl The first and second issues make it appear that the coach was wei and that, from overloading and overdriving, the axle broke. 1 presumption is, according to the case quoted, that this arose fri negligence ; and there is no law to show that general evidence sufficient to get over this presumption. He protested against 1 rule of inspection being sufficient ; but there is no proof of iasp tion here. Lord C. Commissioner. — ^The real question is, Whether the ov turn was occasioned by the negligence of the defenders I The i fenders are liable for the negligence of their servants. The act ferred to can only be taken as evidence iu this case of what 1 Legislature thought was the proper number of passengers, and a criterion to assist you in forming an opinion on the question overloading. There is nothing in the terms of the issue to enti you to consider it in any other view. So far as I know, this is the first case of the sort which has b« decided in this country ; and even in England there have been vi few cases. I consider the case of passengers different from the c riage of goods — the fear of tricks of common carriers has led to 1 rule of absolute liability as to goods, but the same does not hold to passengers. The rule I should draw, taking the analogy of 1 law of England, would be, that if the carriage is sound, as far as 1 human eye can discern, the proprietors are not liable ; and this state to you, is the subject of inquiry in the present case. The qu tion is, under second and third issues, whether that care, dihgen and attention, which is applicable to the subject, has been used, a whether the defenders have used the utmost care to which hum foresight could reach? You are to consider the state of the coa( and to form your opinion whether the human eye could have d DIGEST OF DECIDED CASES. 2o covered the defect. It requires a clear case to be made out ; and has Anderson v. the pursuer made out such a case? Has he proved insufficiency ; p^jjiage from and have the defenders proved that it could not have been discovered ? the overturn of These I lay down to you as the principles on which you are to judge ^ ^'^s® coach. this case, not because they are the law of England, but because they are the dictates of common sense. You are to say whether there was such appearance of defect as the eye of an artificer, applied with rea- sonable attention, could discover ; and will take into consideration, that the eye of an experienced person might discover defects imper- ceptible to others. The jury returned a verdict for the defenders. A rule was applied for a new trial, but it was refused by the Court. LoED C. Commissioner. — As to the verdict being contrary to evi- dence, if I am right in the law, then the question of negligence is for the jury. We cannot fix how many inspections are necessary, and -with what velocity the coach may run. Had a case of gross negligence been made out, the Court might have set aside the verdict, but as the flaw had only the appearance of a hair, which, on the evi- dence, the jury thought human skill could not discern antecedently to the cause of the injury; and as the evidence of attention on the part of the proprietors was laid before the jury, with which they were satisfied, we think that we ought not to grant a new trial. Lord Gillies concurred. 25th June 1821. — Ceoft and Another, against Alison. — Croft, &o. u. 4 Barn, and Aid., p. 590. Damageby col- lision on high- The plaintiffs were livery stable keepers, and had hired a for servants' chariot for the day from Messrs. Lambert and Bryant, who*" were coachmakers. The plaintiffs furnished the horses, and appointed the coachman, and then let it out to an indivi- dual for the day. The chariot was lawfully standing on the public highway, and the defendant's coach and horses, under the care of a servant, were driving along the highway, and so carelessly and improperly driven by the servant, that the wheel of the coach struck and damaged the chariot. The action was for recompense. It was stated in evidence, that the cause of the accident arose from the defendant's coachman striking the plaintiffs' horses with his whip, in consequence of which they moved forward, and the chariot was overturned. At the time he so struck the two car- 26 DIGEST OF DECIDED CASES. '^''auson!' "■ ™^^^ ^^^^ entangled. The Lord Chief Justice left it Damage by col- the jury, to determine whether the carriages had beco wa™ ™ '^ entangled from the moving of the horses of the plainti which, previously to the accident, were standing still, 4 without a driver ; and he directed them to find for the fendant in case they thought so, and that the whipping the defendant's coachman was for the purpose of extricati himself from that situation. But he directed them to fi for the plaintiffs, in case they were of opinion that the ( tangling arose originally from the fault of the defendar coachman. The jury found for the plaintiffs. A new trial was moved for, on the ground that the pla tiffs could not be called the owners or proprietors of t chariot ; and, secondly, that the injury arose from the fai of the defendant's coachman in whipping the plaintii horses: that was a wanton act on his part, for which himself, and not his master, would be liable. The CouET held — As to the first point, it has never been suppoi that a mere passenger in a carriage can be considered as the owi or proprietor, so as to be entitled to bring this action. The pla tiffs were something more, for they have not only hired the chai for the day, but have appointed the coachman and furnished 1 horses. They may therefore, for the purposes of this action, be h as the owners and proprietors of the chariot. As to the second poi the distinction is this : if a servant driving a carriage, in order effect some purpose of his own, wantonly strike the horses of anotl person, and produce an accident, the master will not be liable. I if, in order to perform his master's orders, he strikes, but iuju ciously, and ia order to extricate himself from a difficulty, that v be negligent and careless conduct, for which the master will be liat being an act done in pursuance of the servant's employment. 1 case, therefore, has been properly left to the jury. Eule refused. Ogilvie!). 2 2d May 1821. — Ogilvie and Others, against The Besponsftility'' MAGISTRATES OF EDINBURGH. F. C. for Leith pilots. A ship, having on board a pilot, ran aground on a san bank, near the entrance of the dock at Leith harbour, ai received considerable damage. The owners raised acti against the underwriters, and they again claimed relief frc DIGEST OF DECIDED CASES. 27 the defenders as representing the community of the city of Ogilvie w. Edinburgh, proprietors of the harbour of Leith. It was main- EesponSwiity tained that, as the harbour master and pilots were appointed *'"^'-^°'**'P'^°'®" by the defenders, they were responsible for their conduct. The Lord Ordinary found liability. The Magistrates re- claimed, maintaining that there was an essential difference between the right of a person to perform a public duty, or to exercise a profession, and choosing a servant, and devolv- ing on a substitute a ■ delegated duty. By custom the Magistrates appoint or license the pilots on their applica- tion, accompanied by certificates from the Trinity House, bearing that the applicant has been examined and found to be qualified ; but this did not constitute the relation of master and servant. Moreover, the Magistrates received no part of the dues of pilotage. They may estabhsh the rate of dues, but no emolument accrues therefrom to the city. The whole sum -drawn in each case is divided in certain proportions, between the pilot and the harbour master. The pursuers answered that the Magistrates admit, control, and remove pilots and harbour masters as they please, they take the entire management of vessels coming into the har- bour, and they directly participate in the price wliich is paid for each particular act of pilotage, and these being the facts, the Magistrates are just as liable for damage occasioned by the pilots or harbour master's culpable negligence, as if the' Magistrates had been actually at the helm. The Court, after causing inquiry at the ports of London, Liverpool, Hiill, and the Clyde,- aind the result being a unanimous report that' the fees or rates were not accounted for' to those from whom the appointment came, that the situations were not purchased, and that there was no in- stance of the parties so appointing being subjected in damages on account of the pilot or harbour master's mis- conduct — ^the Court accordingly altered and assbi^ed the Magistrates. 28 DIGEST OF DECIDED CASES. Frasek v. 2 2d January 1822. — David Feaser and Father, Purai Damages,' in- against DuNLOP and MoNTGOMEKlE, Def&nd^TS. 1 S. 2 J jury by horse and cart. Lia- . . j> i • r j. bill ty of master. An action by Fraser, witn concurrence ot his tat against Dunlop, a brewer, and Montgomerie, his servant reparation of serious injury he had suffered on the pu road, from having been run over by a horse and cart bel( ing to Dunlop, and at the time employed on his busii under Montgomerie's charge. The ground of action was, 1 the pursuer's misfortune arose from the carelessness and attention of the said Robert Montgomerie in driving cart upon the footpath where the pursuer was, when he so rode down, and for whose inattention and careless) the said Archibald Dunlop is responsible, and liable to demnify the pursuer for the loss and damage sustained him. The Lord Ordinary found the action relevant aga the servant, and reported the case as to its relevancy aga the master. The Court found the libel, as laid in this c relevant to infer claim of damage against both parties. brownlee. 7th June 1822. — ^Anderson, Suspender, against Browni — 'Ll- Gharger.-l S. p. 474. vant. Bro^^Wee employed Anderson and Ralston to deliv( quantity of wood to H. & R Baird, in the course of dc which a shed belonging to the Bairds was driven do For reparation of the damage thence arising, the Ba; were found entitled in an action against them to retain j of the price. Brownlee then brought an action of re against Anderson, on the allegation that the damage been occasioned by the negligence of his servant. Am son's defence was, that he was employed by Ralston and by Brownlee, and that the claim lay against the fori The Inferior Court, however, on proof, found that he contracted directly with Brownlee to deliver the wood, ; decerned against him. The Lord Ordinary and the Cc adhered. DIGEST OF DECIDED CASES. 29 25th February 1825. — Janet Chapman, against William Chapman «. PaELANE. 3 S. D. p. 585. Damages for an unfenced The defender was proprietor of an unfinished house in Glasgow. The walls of the house had been built to the height of only a single storey, but there was a sunk flat beneath the level of the street. On a dark night the pursuer, who kept an ale house in the neighbourhood, was passing, and stepped aside for a neces- sary purpose into the door or entry of the building, across which there was no fence or barrier, and falling into the sunk flat, broke her thigh bone. She required medical attendance for four months, and suffered permanent though not material lameness. In an action of damages the Magis- trates of Glasgow gave £5 0. She advocated, and the Court remitted to increase the damages to £250. 4th July 1826. — Baird, Advocator, against Hamilton, Bi.air». Respondent. 4 S. p. 790. injury by horse and cart. Lia- . . T M 1 1 bility of master. An action to recover damage for mjury to a child thrown down by a horse and cart belonging to Baird. It appeared from the proof that the horse and cart had been entrusted to a servant, a lad about seventeen or eighteen years of age, and that while passing through Williamsburgh, near Paisley, loaded with dung, the horse and cart, being about a yard and a half from the footpath, on the wrong side of the road, knocked down the child, who was then playing on the road in front of her father's door, and severely bruised her right hand. The servant was at the time about 100 yards be- hind his cart. No evideijce was produced to shew that the servant was either a right person to act as a driver, or that he had formerly been guilty of negligence. The SheriflT found £40 of damages against Baird. The defender advocated, maintaining that before liability could attach to a servant for injuries done ex culpa of his servant, there must be some negligence or blame on the master's part ; and that the care- lessness of the father in allowing the child to play in the public road, barred such a claim. 30 DIGEST OF DECIDED CASES. Baikd v. The Court unanimously repelled the reasons of advocati Hamilton. a?d^rt'''Lia- ^^^^ Glenlbe.— There is a great deal in the simple ground i bility of master, the dsmiage was done hy the defender's horse and cart, where no was lookiig after them, nor is it a sufficient defence for the partj say, ' I hired a servant to attend to it.' The master is liable for carelessness of the servant. It is essential, however, thnt the dam should arise from the way and manner of doing the master's wc For suppose a servant takes offence at another man, and horsewl him, though at the time he is conducting his master's cart, yet damage is not inflicted in the doing of it, he is acting for hims and the master is not liable. But, in this case, the injury was d by the master's horse and cart, and by the negligence of his servE Lord Eobbrtson. — The question to be decided is correctly sta in the pursuer's information. Is a master liable for damages reparation of an injury inflicted by his servant through carelessn and neghgence, in the performance of some work committed to 1 by the master? I am of opinion that he is. It is necessary for safety of the public, that masters should be bound to employ s vants of such character as will conduct their carts with safety the public. Lord Pitmillt. — There are two things which go to decide ii 1. The servant was doing an act, which he was specially hired e employed by his master to perform,' wherein it is distinguished fr the case of Linwood, where no orders were given to cut down 1 tree which occasioned the injury ; 2. The accident happened fr the omission of ordinary caution in performing that act. And also differs from the case of Linwood, where it was merely a ca fortuitus. The case of Praser v. Dunlop is clear in principle, for i decision there was on the relevancy ; and in Lord Keith v. Keir, which I was counsel for his Lordship, although it appears a hi case, the decision, I am satisfied, was right in principle, for as he v employing his servants to clear the muir, though not ia the th they adopted, the accident happened doing a deed which he had e ployed them to perform. Lord Justicb-Clbbk. — This is not a mere case of accident, as 1 majority held it to be in Linwood, which I accordingly throw out view, but one of gross negligence and culpability by the servant doing an act which he was employed by his master to perform, a I conceive that a master is bound to employ persons of -competf skill and carefulness. He is under a duty to the. public to do tl and if he fail he is liable in the consequences. As to the case Keith, although I may in giving my opinion in Linwood, have ( pressed a doubt of it as it is reported, I am satisfied that it was w decided as the facts really stood. ' It appeared from the session pape that -Mr. Keir authorised the servants to make use of fire, a mi important circunjstance not noticed in the report. DIGEST OF DECIDED CASES. 31 1826. King's Bench, Trinity Term. — Laugher u Pointer, laugher ». —5 Barn, and Cres./p. 547. injn™ngh careleasness of _,..._, . coachman. rlaintifi brought an action to recover damages occasioned Whether hirer to his horse, said to have been sustained by the negligent '* conduct of the defendant's servant, in driving a carriage and horses of the defendant. The defendant usually resided in the country, but, being in town with his own carriage, sent, in the usual way, to a stable-keeper for a pair of horses for the day. The stable-keeper accordingly sent the horses, and a person to drive them. The defendant did iiot select the driver, and had no previous knowledge of him. The driver had no wages from the stable-keeper, but- depended upon receiving a gratuity from- the persons whose carriages he drove. The defendant gave him five shillings as a gra- tuity for his day's work ; but the driver had no power to demand anything. The Lord Chief Justice directed a non- suit. A rule for a new trial was afterwards granted; and there being a difference of opinion on the bench, the case was ordered to be argued before the twelve judges. A full discussion ensued on all the prior cases, and the judges were not agreed in opinion. The case came back for decision to the King's Bench. LiTTLEDALE, J. — According, to the rules of law, every, man is an- swerable for injuries occasioned by his own personal negligence j and he is also answerable for acts done through the negligepce of those whom the law denominates his servants, because such servants re- present the master himself, and their acts stand upon the same foot- ing as his own. . In the present case the question is, Whether the coa,chman, by whose negligeijice. the injury was occasioned, is to he considgi;ed the servant of the defendant? For the acts of a man's own domestic servants, there is no doubt but the law makes him re- sponsible ; and if this accident had been occasioned by a coachman who constituted a part of the defendant's own family, there would be no doubt of the defendant's liability; and the reason is, that he is hired by the master, either personally, or by those who are en- trupted by the master with the hiriag of servants, and he is therefore selected by the master to do the business required of him. This case, however, is not the case of . a man .employing his own immediate servants, either domestic servants, or others, engaged by him to conduct any business, or employment, or occupation ca.rried on by him. For the jobman was a person carrying on a distinct em- ployment of his own, in which he furnished men, and let out horses 32 DIGEST OF DECIDED CASES. Laugher v. to hire, to all such persons as chose to employ him. This coae Iniu^hrmish ^^^ ^°* hired to the defendant ; he had no power to dismiss carelessness of He paid him no wages. The man was only to drive the hor coachman. the jobman. It is true the master paid him no wages, and the i which he got was from the person who hired the horses ; but was only a gratuity. It is the case with servants at inns and h Where there is a great deal of business, they frequently receii wages from the owner of the ion or hotel, and trust entirely to they receive from the persons who resort to the inn, and yet th( not less the servants of the innkeeper; they are not servants wages, but servants upon expectation of gratuities. And ther if the defendant is, in this case, to be answerable for the acts o driver provided by the jobman, it must be upon this principle,— if a man, either for his benefit or pleasure, employs an agent to duct any business, such agent is to be looked upon in the same as if he were the immediate servant of the employer, and tha owner of the property, by employing such an agent to transac business, confides to him the choice of the under workmen; then the principle must go on to this, that such agent and i workmen are to be considered in the same Ught as the forem; manager of a person in conducting his business, and as the worl selected by such foreman or manager ; and that it makes no d ence to persons who receive an injury, in what light the ofiei party stands to the principal, whether as an under workman empl by an agent, or an under workman employed by the foreman ol principal ; and that the only thing to be looked to is, Wheth( the end the principal pays for the employment in the course of -n the injury is occasioned. But I think that, upon principle, the cannot be carried so far. Suppose a man has a ship, or can or other thing to repair, and he, instead of having the repairs on his own premises, and by his own servants, sends it out to b paired by a person who exercises the public employment u which it would be repaired, and any damage happens in the cc of the repair by the negligence of the persons employed, thesi employed by a person who may be considered the agent of the ; cipal, and yet the law would not hold the principal liable. If a hires a carriage and horses to travel from stage to stage, the car and horses are employed for the benefit or pleasure of the trav instead of using his own, which he may not do, either from inal to keep horses, or a desire of expedition, and yet the lawhas never sidered the traveller liable. There is no difference in principh tween a man's traveUing by the stage or travelling by the day. Ii case and the other the traveller is using the carriage and horse his benefit ; he pays so much the day instead of so much by the i he pays the coachman a gratuity in the one case, and the postilii the other case, and yet the traveller has never been held Uable. same rule would apply to a hackney coach. There are, however, cases which have been determined upon ciples not altogether consonant to what I have before considew those upon which the liabilities of parties should be determ DIGEST OF DECIDED CASES. 33 where persons have been held liable for the negligence of individuals Laugher v. who were not their own immediate servants, but the servants of j^j^^^^' j^ agents whom they ha,d employed to do their work. In Bush v. carelessness of Steinman, the owner of a house had employed a surveyor to do some coachman— work upon it ; there were several sub-contracts, and one of the work- Jbiep™"^"" men of the person last employed put some lime on the road, in con- sequence of which the carriage of the plaintiff was overturned, and it was held that the owner of the house was hable, though the per- son who occasioned the injury was not his own immediate servant. So, in Sly v. Edgley (6 Esp. 6), a person had employed a bricklayer to make a sewer, who left it open, in consequence of which the plain- tiff fell in and broke his leg. The person who employed the bricklayer was held liable, upon the principle of respondeat superior; that he had employed the bricklayer, and was answerable for what he had done. These cases appear to establish, that in these particular in- stances the owner of the property was held liable, though the injury were occasioned by the negligence of contractors, or their servants, and not by the immediate servants of the owner. But) supposing these cases to be rightly decided, there is this ma- terial distinction, that there the injury was done upon, or near, and in respect of the property of the defendants, of which they were in pos- session at the time. And the rule of law may be, that in all cases where a man is in possession of fixed property, he must take care that his property is so used and managed that other persons are not ia- jured, and that whether his property be managed by his own immediate servants, or by contractors or their servants. The injuries done upon lands or buildings are of the nature of nuisances, for which the occu- pier ought to be chargeable, when occasioned by any acts of persons whom he brings upon the premises. The use of the premises is confined by law to himself, and he should take care not to bring persons there who do any mischief to others. But as to Bush v. Steinman, there are some observations to be made. Lord Chief Justice Eyre, in the first place, at Nisi Prius, was of opinion that the action was not maintainable; and when the case came before the Court, he says, in the beginning of his judgment, ' that he finds ' great difficulty in stating with accup acy the grounds on which it is ' to be supported. The relation of master and servant, as commonly ' exemplified in actions brought against the master, is not sufficient ; ' and the general proposition, that a person shall be answerable for ' any injury which arises in carrying into execution that which he ' has employed another to do, seems to be too large.' And, in con- clusion, he also says, that he still feels difficulty in stating the pre- cise principle on which the action is founded; this case, therefore, does not rest upon the same basis as it would if no such doubt had been expressed. His Lordship also referred to lAttledale v. Lord Lonsdale, and Leslie v. Pounds (4 Taun.), decided on special grounds. He then proceeds : ' It may be said that the; defendant in the pre- ' sent case was owner of the carriage, and that therefore the prin- ' ciples of these cases apply ; but, admitting these cases, the same ' principle does not apply to personal moveable chattels, as to the C 34 DIGEST OF DECIDED CASES. Laugheb v. ' permanent useand enjoyment ofland or houses. Houses am Injurythroiigh ' come under the fixed use and enjoyment of a man for his r carelessness of 'oecupation and enjoyment in life, the law compels ;him to tak coachman— « ^^^ j^q persons come about his premises -who occasion inj sible? ' others. The use of a personal chattel is merely a temporary ' the enjoyment of wluch is in many cases trusted to the car ' direction of persons exercising public employments ; and the ' possession of that, where the care and direction of it is ento ' to such- persons who exercise public employments, and, in vii ' that, furnish and provide the means of using it,, is not suffici ' render the owner liable. There are many cases where que ' have arisen upon the liabilities of postmasters, of captains lof ' of war, and of owners of ships who have taien pilots, and of f ' who have acted for their principals, and others, as to what de^ ' possession is kept by theowner. These I have not thought it : ' sary to notice, because I think the sole question here is, wh ' if a man employs another to do work respecting ipersonal moi ' property, and that other furnishes a servant, that servant is ' considered in tiie same light as a servant appelated by the j ' himself.' .? . '•- HoLROYD, J., held that the defendant was responsible fo ■driver's negligence, and responsible, as being to be consideri the circumstances of the case, as inlaw'his servant. It appeal him that the defendant stood in the same situation of responsi as if the horses had been driven by Bryant (the jobman) hims as if they had been driven by a person chosen by the.defe: himself; for the driving is equally under the authority and ore the defendant, and equally for -his profit, benefit, or pleasure the driver he thought equally the defendant'si servant for that pose, whether the driver be -Bryant himself, the person directly and employed by the defendant, or be-another -person, selectee appointed by the defendant himself, or a person seleci.ed' an pointed by Bryant, under the authority or permission of the de ant. The question is not whether Bryant, as the owner of the h and the immediate master of the driver, might or might not been made responsible for the dijver's negligence. If or is this- th of a letting for a particular purpose only, such as going to a - cular place, as. in Dean v. Brardhwaite, auASammel v. Wright, ^ the hirer was iconsidered not to have the entire management anc trol over the thing so hired ; from which cases the present is d guishable, because the present hiring was for no swsh particulai pose, but to go with the carriage where the defendant chose, a be under his general authority ajid orders in that respect for i tain time. 'Although the horses were continued in the custo ' the driver provided by Bryant, yet, as the horses and driver we ' be for the use and subject to the general directions of the defenc ' and as the defendant had a right to retain them till the tim ' which they were hired was expired, and as they were,, at the ' the mischief was done, in the use and under the directions o ' defendant, I think that the driver was, for this purpose, in th( DIGEST OF DECIDED CASES. 35 ploy, and in law the servant, ot the d^endant, and that the defend- Laugher v. ant was in law answerable for the dxiver's negligence in the execu- jj,j^^ j™^-)^ tion of the defendant's orders in such, employ, in whatever situation carelessness of the driver might ,also stand with respect to Bryant, with regard ^;o ooaoinnim^ Bryant's responsibility for him. at the election pf the. plaintiff. TheJijigp'^^^™" principle of Bush v. Steinman was referred to as an authority for this principle. Batlet, J. — If I hire horses of A., and hire B. to drive, B. is, undoubtedly, for the time, my servant. ■ Is the driver less my serv- ant for the time, because I hire him, and the horses under one bar- gain, and allow the owner of the horses to select him? He is em- ployed for me— that cannot be disputed. He drives where I direct, and. so as I require nothing contrary to my contract with the owner of the horses, he must obey my reasonable commands. , He must go where I order, stop when, I require, must,,, gp the : pace I specify. Though the owner of the horses is, |to a certain .extent, his master, I am, to a certain e3;tent, his master also. ;Though ,the former is his master, in general, he has, for a time let him out.to me,; and a master is liable for the acts of one who is in his service or eniploy, thojigh the master who is to be chMged is not Yds, immediate employer, but em- ploys him, through the niedium of another. If I hire the, driver I am responsible for him., , If I employ J. S. to hire him, am I not still .an- swerable? I exercise my own judginent in the one case,! leave, it to J. S. to exercise a judgment forme in the other; but s'^iU it is,f(3r me that the judgment is exercised. . The service isperfbrined for me. It is my work the driver does. The same principle applied in Bush V. Steinman: — ' If a deputy has po*er to make servants, the pria- ' cipal will be chargeable- for their mjsfeazance, for.the act of the ser- ' vant is the act of the deputy, and the aqt of thci deputy is the act of ' the principal.— Per C, J. *HQlt, in Lcanfi v., Cottori (l.Ld., and ' Eaym. 656.) The owner of a ship is liable for the misfeszance pf '■ the mariners, though he leaves it to the master to select the crew,' Xhe owners of a coach will be liable, though they, leajfe it to, J. S. to select the driver and the horses, or though they employ as driver the man who owns the horses. In many instances one proprietor horses a coach for one stage,; another for a; second, and so on; and in some instances, the man who finds the , horses finds the coachman also.^ Shall.this take awa^jrthe.liability of allthe proprietors— shall it be said, if the coach does an injury upon a given Stage, ,that the proprietor who finds the horses and. driver for that stage alone shall be answerable? The horses, and driver are found by the one to dp the worii of all; they are employed upon the work, and for the benefit of all, and therefore all are responsible. Nor does it appear to me to make any distinction whether the driver and horses are hired for &. single day, or for a longer period, i Had they; been hired by the year, can there be a doubt but that the hirer would have been an- swerable? What if they had, been hired for a nionth, or for a week? "Wpuld the difference of period for which they- were hirei make a difference in the responsibility ? Can any legal principle be addviced to make the period the criterion of being answerable or not? 86 DIGEST OF DECIDED CASES. Laughek v. The driver is equally employed on account of the hirer to c Imfa^rougk wo* of the hirer, to obey the lawful commands of the hirer, e earelessmess of be the temporary servant of the hirer, whether he is engaged fi ooaokman— (j^y, the week, the month, or the year, and the hirer bears tl siblt?'^^^™" pearance, for the time, of standing in the relation of master • driver ; and these are circumstances which, in my judgment, the hirer responsible. On these grounds he thought the defe liable. Abbot, C. J. — This was an action upon the case brought to n damages for an injury done to a horse of the plaintiff, by the gent driving of a carriage against it in one of the streets of Lo (The Lord Chief Justice, after stating the pleadings, proceec follows:) — At the trial before me the plaintiff was non-suit( rule was obtained for setting aside the nonsuit, and the cas argued, first in this Court, and afterwards before us andthejud the other Courts at Serjeant's Inn ; but a difference of opinio; existed, both in this Coui-t and among the other judges. I take the question to be, whether either of the counts in tl claration was sustained' by the evidence given at the trial. Tl dence given was, that the defendant, a gentleman usually ref in the country, being in town for a few days with his own cai sent, in the usual way, to a stable-keeper for a pair of horses day. The stable-keeper accordingly sent a pair of horses, and i to drive them, being the horses and driver mentioned in the de tion. The defendant did not select the driver, nor had any pK knowledge of him. The stable-keeper sent such person as he for this purpose. I thought at the trial that the driver ©ould not be considei the servant of the defendant, so as to sustain either of the firf counts ; and also that the horses were not under the care, gc ment, and direction of the defendant, nor driven, governed, ai rected by him, so as to sustain the last count ; and with a respect for such of my learned brothers, both in and out of this ( who think otherwise, I ' must say that I still entertain the opinion. I win first advert to the authorities quoted, on the one sid on the other. The decisions cited for the plaintiff were the ment of the Court of Common Pleas, in Bush v. Steinman, a nishing a principle ; and the observation of Mr. Justice Heat ferring to a supposed ease, like the present, and assuming th£ owner of the carriage would be answerable : Hall v. Picka Camp. 187), and Croft v. Alison (4 Barn, and Aid., p. 590). On the part of the defendant were cited Chileot v. BromU ves. 114), Dean v. Branthwaite (5 Esp. 35), Sammel v. W (5, Esp. 263), and the case of Sir Henry Houghton; before EUenborough at Warwick. Reference was also made to Pot Treatise on Obligations, Part I., No. 121. Bush V. Steinman was an action against the owner of a under repair, and not inhabited, for causing a quantity of hme placed on the high road, whereby the plaintiff's chaise was DIGEST OF DECIDED CASES. 37 turned and damaged. The defendant, who had never occupied the Laugheb ». house, had contracted with a surveyor to repair it for a fixed sum. Pomteb. The surveyor contracted with a carpenter to- do the whole, the car- g^'gi^g^g ™^{ penter employed a bricklayer, the bricklayer contracted with a lime- coachman- burner for a quantity of lime, and the servant of the latter laid the'^^" ^'^spon- lime in the road, at the trial before Lord C J. Eyre, the plaintiff was non-siiited, but his Lordship afterwards changed his opinion, and concurred with the other Judges of the Court in granting a new trial, though he confessed he found a difiSculty ia stating with accuracy the grounds on which the action could be supported. He appears, however, to have been influenced chiefly by the two cases of Stone Y. Cartwright, 6, T. E. 411 ; and lAttledale v. Lord Lonsdale, 2 H. Bl. 299. These were actions for injury done to a dweUing house, by the improvident working of a colliery under it. In the first case the owner of the colliery was an infant ; the action was brought against an agent and manager, appointed by the Court of Chancery, who hired and dismissed the workmen at his pleasure, but took no personal concern, was not present,, and had given no particular direc- tions for working the mine in the manner that occasioned the mis- chief The defendant in this case was held not to be answerable ; and Lord Kenyon said, I have always understood that the action must be brought against the hand committing the injury, or against the owner for whom the act was done. The latter was an action against such owner, and was held maiatainable. These cases estab- lish the principle, that the owner of a mine is answerable to the person whose property may be injured by the improvident manner of working it. And if to these we add the case of Bush v. Steinman, the principle will be carried no further, it wUl only be apphed to the owner of a house, and render him answerable for an improvident act taidng place in the repair of it. The case of Hall v^PicJcavd was a question as to the proper form of action, whether trespass or case. It was an action for injury to a horse belonging to the plaintiff, but let by him for a term to a gentleman, whose carriage it was drawing, and by whose servant it was driven, and it was held, that case and not trespass was the proper form of action, for the plaintiff had neither the legal nor actual possession of the horse, so as to maintain trespass. The case of Croft v. Alison was an action for injury to a carriage ; the plaintiff, a stable keeper, had hired the carriage of a coachmaker for a day, had furnished horseSj appointed a coachman, and let them out to a third person for the day. Under these cir- cumstances it was held, that the plaintiff was the proprietor of the carriage pro tempore. On the other hand, the case of Dean v. Brcmthwaite was decided upon the principle, that the owner of horses let to draw the defendant's carriage to Epsom ra«es, under the conduct of postillions appointed by the plaintrfi^ had not thereby put the horses into the possession of the defendant, so as to preclude him from maintaining an action of trespass against the defendant for an injury done by him to one of them. The case oiSammel v. Wright yf as an action brought against a stable keeper, who had let four horses in the usual way, to draw, a 38 DIGEST OF DECIDED CASES. Laugher v. lady's carriage to Windsor, and the defendant was held liable 1 .P°™?™- action. The case of Sir Henry Houghton was that of hdrses cAreSneBs'^f^y li™ to draW his carriage travelling post, and he was held : ooaohman-^ be anSwferable. It is true that' all the three' were decisions 'a1 ^K° J^^P'"'' priiis, but they were the decisions of a very great Judge,' and not afterwards brought before the Court. ■ ' i >> ■ The case oiCMleot v. Bromley was a suit for a legacy un wiU, whereby a legacy was given to each of the testator's ser The testator hired a carriage and horses for a year of a job-m *ho also supplied a coachman, and paid him. 9s. a- week. ■ Th tator paid him l'2s. a-week for board wages, and he received a ] with the other men servants. The question was, whether this c man was a servant of' the testator within the nieaningiof the The Master of the Eolls held that he was not, and appears to founded his judgment principally on the ground that there wi contract between the testator and the coachman, the contract - with the 'job-master, who might change the coachman ^if he si think fit, without a breach of his contract, if he substituted am of whom the testator could have no reason to complain. Upon this ■new of' the decisions, they appear to me to predon in favour of the defendairt: The three cases of Stone v. Gwtw; Ldttledale y.' Lord Lonsdale, and Bush v. Steinman, do niot' i] opiili6n afford a rule by which the present case ought to be gOve Whatever is doae for the working of my mine, or the repair o house, by persons mediately or immediately employed by me, be considered as done by me. I have the control and manage of all that belongs to my land or my hobse j and it is my faul do not so exercise niy authority as to prevent injury to another, does it follow from this, that I 'have the care, government, or ( tion' Of horses hired by me of another person, who sends a servi his oWti to conduct and manage them, because I hired thchori draw my Cairriage ? ' ■■-■,..,. The opinion given by Mr. Justice Heath, on this subject, i case of Biish v. Steinman was extra-judicial. It has the weigh* perly belonging to the opinion of a very learned Judge, but it not be tevised, and has not the authority of a judglnent. The of Dean y. Branthwaite, and Sdmfnel v. Wright, and the « Sir Henry Houghton, were decisions at nisi prius, but they wei decisions of a very learned Judge, they were capable of revision, were not Afterwards questioned, and the last ■ of the three directly upon the question in the present case. Having made these remarks upon the former cases, I wUl proceed to make some observations upon the case as it might independent of prior decisions. I admit the principle that an answerable for the conduct of his servants in matters done by in the exercise of the authority that' he has given' tothemj aai( (which is the same thing in other words) that whatever is doi his authority is to be considered as done by him. I am sensil the difficulty of drawing any precise Or definite line as to tii distance. But I must own that I fcannot ■ perceive any substi DIGEST OF DECIDED CASES, 39 difference between hiring a pair of horses to draw my carriage about Laugher v. London for a diay,'and hiring them' to dTaw it for a stage on the road Pointeb., I am .travelling, the driver being in both cases furnished by the <,°rSsuesg of owner of the horses in the usual way; nor can I feelany substantial coachman— ditference between hiring the horses to draw my own carriage on T^,° J^^spon- these occasions, and hiriag a carriage with horses of their owner. If the hirer fee answerableun the present case, I would ask on what principle it can be said that he shall not be answerable if he hires for an hour, or; for a mile?; He has the use and benefit, pro tern-: pore, not less iuthe one case than in the other. If the hirer is to be answerable when he hires the horses only, why should he not be answerable if he hires the carriage with them? He has the equal use and benefit of the horses iu both.cases, and has not the conduct ormanagement of them more in the one case than inithe other. If the temporary use and benefit of the horses wOl make the hirer answerable, and there be no reasonable' distinction between hiring them with or without a carriage, must oiot the person who hires a haekney coach to take him for a mile, or- other greater or less dis- tance, or for an hour, or longer time, be answerable for the conduct of the eoachman? Must not the person who hires- a wherry on the Thames be answerable- for the conduct of the waterman? Ii believe the common sense of aU men would be shocked if any one should affirm the hirer to be answerable in either of these cases. : -Will ib be said that the hirer is not answerable in eithen of these -cases,- because the coachman and the wherryman- are ready to attend to the call of any person who will employ them ? I answer, so also is the stable-keeper. If it be said that -they are obliged' to obey the, call of any person when they are on the stand, or -at. the stairs, I would. ask, WiU there be any difference if they are spoken to beforehand, and desired to attend at a particular hour I which is not an unusual occurrence where persons have- an engagement to: go out at, an early- hour in the morning. If the personal -presence of theiihirer will render him responsible, why should he not be- equally i so if he is absent, and has hired the horses or carriage for his family, or ser^ vants? Does his presence give him any means- of superintending or controlling! the driver;?' Can any- legal obligation depend upon such minute distinctions ? If the case of a wherry on the Thames does not furnish an analogy to this subject, let me put the case, of a ship hired and chartered for a voyage on the ocean, to carry such goods- as the charterer may think fit tw load, and such only. ,- Many accidents have occurred -from -the negligent j management of such vessels, and many actions have been brought against their owners; but I am not aware that any has ever been brought against the charterer, though he is, to some purposes, the dormniis pro tempore; and the voyage is made not less under his employment, and for his benefit, whether he be on board or not, than the journey is made under the employment and for the benefit of the hirer of the horses. Why, then, has the charterer of the ship, or the hirer of the wherry or the hackney coach, never been thought answerable ? I answer. Because the shipmaster, the wherryman, and the hackney-coachman. 40 DIGEST OF DECIDED CASES. Laugher v. ]iave never been deemed servants of the hirer, although the 1 Iniurfthrouffhe landlprd of LTnclloril'Uabie&™™I'Ateb v. it to be settled in the law of Scotland, that Eoad Trustees are liable Road'Trust'ees. qua Trustees, as stated in the direction which has been excepted Damages for against. In regard, to the law of England, which has been referred ^<="'^^'^*^y°''" to, there may be many reasons which would justly influence thej-o^a. Non-lia- minds df judges in -deciding on liabilities arising under 'their statu tes,bility of trust which would not apply iuiScotland; and it does appear to m& that'""^"^" the result which would be occasioned in Scotland by the doctrine of the defender, is wholly unwarranted by ouir law. That result would be, that on the highway, a person who pays toll for keeping it in good repair, might, through the negligence of the persons em- ployed to repair it, be exposed to the severest injuries, and yet have no party but a day-labourer to dook to for redress, whose whole means would be utterly inadequate to pay one tithe of the reparation that was due. I think, on the contrary, that Trustees are liable as such, with full relief to ithem lagainst the trust-funds levied for ithe jcoads. This liability has been repeatedly decided. In the case of the Ma- gistrates of Edinhurgh it was so held, where servants employed in an operation in the street left a hole in it, which was not sufficiently fenced and lighted, in consequence of which a person fell in, and suifered a severe injury. The Magistrates were not, indeed, Eoad Trustees, but they were public officers, discharging, gratuitously, a public duty. Then, besides other cases, there were those of M'Lachlan and of Miller, in the first of which the Lord. Chief Com- missioner, who was well versed in English law, held that it did not apply, and that the liability of Eoad Trustees was established by the law of :Scotland. So long, therefore, as our law remains in its .pre- sent state, I must consider that the liability of Eoad Trustees is un- doubted. It would be very dangerous on our part to leave our own law and import that of England per aversionem. The other judges concurred, and the exceptions were disallowed. The case was brought to the House of Lords by appeal, and argued on 8th July 1839. Jurist, vol. xii., p. 138. The Lord Chanoelloe said that, on the merits, the case was one of ve,ry great in^portance : he took time to examine the authorities, the paint (being one startling to the ears of an English lawyer, yi?., that for ^am^e sustained by the conduct of persons in the execution of a pub- lic trust, the party sustaining the injury has a remedy, not against the immediate author of the injury, or agaiust the trustees perfionaUy, but ■^)x&t ,he has a direct remedy figainst the trust^funds, by suing, not the trustees, but the officer of the trustees, who has the custody of ,the trust-funds : and it is admitted that the effect of this judg- ment, if it stands, will Jbe, not to give a remedy against the trustees, who may be s.upposed.^ he ,the a,uthQrs of th,e jnjury, but ^gainst the trust-fund j and that if that ises^hausted in the payment of ,tjie dp,- nmges, that it must be supplied by a taxation on the public. 'We have no such principle in our law ; and though certain cases h^v,e been decided by the Court of Session, in which such a verdiqt h^ 58 DIGEST OF DECIDED CASES; FiNDLATER V. besii glveii, I liave not heard any principle referred to, which. i Boad Trustees. ^^^^ Originally supported that decision. If that principle had Damages for part of the law of Scotland, your Lordships may be sure the ind accident by ob- and learning of the counsel would have furnished some instan road. Non-lia-i*'- They have furnished instances in which the particular thin bility of trust been done, but no principle has been referred to, which, if br( funds. under the consideration of the Court, would have given weig the adjudication. On 23d August 1839, at advising, the Lord Chancbllob there has arisen a conflict of opinion in this country, and in Scol upon a point arising under Acts of Parliament, very much dej ing on the construction of these Acts, and as to which the ea decision referred to in Scotland is of the year 1798 ; notwithsl ing which the authority of the English decision, as applicable t rule to be hereafter followed in Scotland, has been objected to, attempt to overrule Scotch law by the weight of the deuisioi England. Nothing can be more important than to. protect th tegrity of the Scotch, law, in oases where that country has a law tinct from that of England. The titles to property, and the r and interests of individuals, in Scotland, are regulated by the la' that country, and, imdoubtedly, all such laws ought to be maintai but, in cases in which there is no peculiar law of Scotland appHi to the subject matter of a contract between parties, but questio: private right and liability arise, to which no preceding princip law can be satisfactorily applied, there is great inconvenience, a degree of reproach to the law itself in the adoption, in the two c tries, of different and inconsistent rules in the administration of tice ; and this can never be more strongly felt than in. cases in \f the questions arise from enactments of the Legislature whic] common to both. In looking through the papers in this case, upon referring to the authorities quoted, I have in vain sough any rule or principle of Scotch law, applicable to this question, ( earlier date than the decision under some special acts, which w lead to the adoption of a course of decision peculiar to that cou: So far from finding any principle in the law of Scotland for ma the liability of persons for the acts of others, acting under their sumed authority, greater than it is in this country, I find the i laid down, in Linwood v. Vans Hathorn, E. C, 14th May 1811 a majority of the judges, much more restrictive of such HabiHty the rule adopted in this country in the case of Bueh v. Steinma Bosanquet and PuUar, 404.) Let it, however, be assumed, that liability was regulated by the same rules in both countries. "W questions first arose upon those Acts of ParUament, which c: trusts of money, levied for public purposes, in both countries Courts had a common principle upon which to engraft such rul it might be advisable to adopt in administering justice upon c tions arising under these acts. In England, it has been repeal held, that Trustees of a turnpike road are not liable for damage ar from the acts of those employed in carrying into effect works u the provisions of the Acts. It was held that Trustees, doing only DIGEST OF DECIDED CASES. 59 wliich by the Act it was their duty to do, and being guilty of no Pindlater», personal default, were not answerable for damages sustained by the Road'rri^es. acts or neglect of persons employed by them in the active execution Damages for of that duty. Another class of cases establishes another rule under aooident by ob- those Acts, viz., that Trustees, exceeding the authority which the Act^oad! Sfcn-Ua- gives them, are personally liable for the consequences of the act donejbiiity of trust but, keeping within that authority, they are not liable for any da-^'^"'^^' mages which their acts may occasion to any other person. The per- son injured, if he cannot find a remedy in the provisions of the Act," is without redress. {British Plate ManufaMurers v. Meredith, 4 Term. Eeports, 794.) The Scotch case, JTwrnes v. Magistrates of Edinburgh, did not apply. The liability of the Magistrates was, indeed, established, but upon grounds which have no applica- tion to the present case, as it rested upon the supposed duties of the Magistrates of Scotch burghs. The case of the Airdrie Eoad Trustees, in 1820 (2 Mur. 194 and 215), was apparently settled. The verdict of the jury, that the Trustees did improperly allow, or permit the stones to remain on the >road for two or three weeks, was sanctioned by the Court, but a new trial was directed as to the liability of Waddell, the wrong-doer. Whether this finding was right or wrong, it does not much apply to this case. It found a culpable neglect or omission of duty, in not remov- ing the stones, which is very different from finding a liability from the unauthorised act of any person employed in the work. The case of M'Lachlan v. Wigtonshire Road Trustees, in 1827, was what we should call in this country a Nisi Prius case. It was also a case like the last, of imputed negligence in not effectually stopping up an abandoned road ; and the claim was against the Trustees per- sonally, the Chief Commissioner saying, ' The trustees are indivi- ' dually liable, and have no funds to pay the damages, if found due.' In Millar v. Colder Road Trustees, that point was not taken. Aitken was compromised. The last two cases, therefore, are instances in which the liability of Trustees was assumed, and neither of them has the weight of a judicial decision, except in so far as in the former, the opinion of the Chief Commissioner was expressed. Such is the state of the decisions in England and in Scotland on this subject. The learned judges of the First Division state, that the law has been fully established in Scotland ; and, upon that^ authority, and from what appears from the reported cases, there cannot be any doubt that there has been, for some time past, a course recognised in Scot- land in conformity with the decision in this case. /But when those cases are examined, it does not appear'that there has been any so- lemn decision of the Court of Session establishing the law before this case. If the decision had been of much earlier date, and of much more weight, from repeated recognitions by the Court of Ses- sion, it might be the duty of this House to correct any important error which the House might find to have led to such a course of adjudication, but, in the present case, the House has not any diffi- culty to overcome. Independently, therefore, of authority, it remains to be considered what are the merits of the case upon the statute* 60 DIGEST OF DECIDED CASES. FiKDLATER ». under -vyMc}! the Trustees ac% , The l^w was Jfiid down by the les Eoad^Trustees.J'^'^S®' ^-'^^^ Eoad Trustees on a public road are liable for any i] Damages for which may ;h3.ppen to passengers, in consequence of the neglij accident by.Qb- or improper conduct of labourers, or, suryeyors or other pe: road. Nau-lia- S'^ploys'l by .the Trustees, or by the officers of the, Trustee?, i bility of trust engaged in any operation performed under the authority of the ' funds. ^ggg_ j£ ^jjjg ig^y^ ijg inaccurately laid down, the verdict found u this direction and expounding of the law cannot stand. Now law, as laid down, would amount to this, — that Eoad Trustees is, the trust-funds under their control, for such is admitted to bi chara,cter of the suit) are liable for any injury happening to a pai ger, from any improper conduct of any person when engaged in operation performed under the authority of the Trustees. This nion, that the conduct of such persons was not in due executi* the purpos.es, of the Act (for otherwise it would not ,be impro constitutes part of the proposition. The result, therefore, of su rule of law would be, that however .improper the conduct of any son employed by the Trustees or their qf&cers, though wholly u thorised by the Trustees, and though unconnected with their, em] ment, aU damage arising from such conduct would be to be com sated out of the funds of the public, in the hands of the Trustee a proposition which would not be supported by any principle oi regulating the liability of Trustees for the acts of their servi The Turnpike Acts do not authorise the appKcation of the fi levied under their authority, in order to compensate for dam arising from any improper act of any person whilst eraployed u. the authority of the Trustees. Such an application of the tolls funds would be a direct violation of the Act, unless it coulc shewn to be so clearly the law at the time the Act passed as to tify the supposition that such an application had npt been enui ated, because known to be incident to the execution of the trust. .why should the trust-funds be liable? If the thing done be wi the power of the Act,, the party sustaining any damage from it cai be entitled to any compensation unless the act itself provides it. this reason, that upon the supposition, the act creating the dan would be lavrful ; and if the thing done be not within the powe the Act, either from excluding these powers, or from the manne doing it, why should the public fund bear the burden of indemr ing the guilty party? Many cases may be supposed, in which Tru.stees may be so far actors in the transaction creating the dan as to render them personally liable, but none in which tbe tr fund ought to be q,pplied in satisfying the p^-ty injured. Find therefore, the rule of law clearly established in England, and notl in the law of Scotland leading to a contrary course of decision, t in fact, no decision prior to the cases which have arisen under s Acts of Parliament as those now in question, and the earlies tho?e cases being in 1820, I cannot hesita,te to say, that I th thjs is a case in which the practice in Scotland has been errone 3Jid ought to be-^et right, and that the interlocutors appealed f should be reversed. Lord Brougham. — After shewing that there are no deci.?] DIGEST OF DECIDED CASES. 6 1 governing the case, his Lordship proceeds — " That, therefore, there Findlatek ». is no rule of law recognised and laid down hy the Court is not denied. Road'rri^ees. But it may be that some general principle exists extending the lia- Damages for biHty of persons farther through their agents than the law of Eng- *°°''^®.'^*.^y P^' lahd allows that liability here to exist. When we coine to examine ^oad. Non-lia- that, however, we find that it is quite otherwise ; that the liabilitj^tility of trust according to the general principles of Scotch jurisprudence is more"""^^' restricted than ours, according to our principles of jurisprudence. Such a case as Busn v. Sieinman, in the Court of Common Pleas, in the titae of very I'eai'ned judges, and which was a decision that gav^ perfect satisfaction in Westminister Hall, a decision perfectly con- sonant to a crowd of other cases^-that case of £u$h y. Steinman, I take upon me to say, would not have been so decided in Scotland. Some doubt was expressed at the bar, which 1 met at the time it was thrown Out. I have no doubt that if that case had arisen iii Scotland, it would not have been decided as it was decided here by the unanimous opinion of the judges, and the unanimous concurrence of the profession." His Lordship states the case (see page 3), and adds — " Consequently the rule was this, that I am liable for what is done by the man whom I employed, nay, for whait is done by th6 person Whom he employs — nay more, for what is done by the person whom the other employs, as if I had done it myself, and for this reason, that in effect I employ him to do it. I set the whole in motion, and it was for my benefit, as well as by my orders, it was done." I am of opinion that neither by the Scotch law, by decided cases, by direct authority varying with the circumstances of the case — nor by general principles applying to the question, which the Court of Session has laid down, can this judgment be sanctioned. Such being my opinion, and entirely agreeing with my noble and learned friend, I hold it to be our duty to set right the practice which has prevailed in Scotland — this not being the only caise. It wiU reverse the deci- sion in the case in question, it will also destroy and abrogate the authority of the, previous cases, and which proceed upon the same principle, it will set right the administration of the law, and make it inconsistent with no decision up to the period of 1820, and it will make it consistent with the general principle of Scotch law, and make the Scotch law in this matter, not only consistent with its own general principles with respect to the liability of agents and other persons, but it will make it likewise entirely consisient with the law of England. Judgment of the Court of Session reversed ; but without costs. 2 2d June 18SS. — John Lamb, Pursuer, aejainst William^ J;^'"? "• i-J"''- ' ' o . Ooaoh accident. Lyon, Defender. — F. C. xiii., p. 799. The pursuer was a passe~nger on a coach belonging to the defender, and driven by Wingate. The coach broke dciwri without the slighest warning, some part of the machinery 62 DIGEST OF DECIDED CASES. Lamb ». Lyon, connected with the wheels having given way. Avern of insufficiency of the coach, and negligence on the pai the. proprietor were also made. The Defence, was, that the injury was by accidental < turn of the coach, by the breaking of the linch-pin of axle, for which he was not in law responsible. He ofl to prove that the coach was substantially built, and in , order. Sheriff Alison, altering the decision of his Substi gave damages against the defender. Lyon advocated, -y the Lord Ordinary altered and assoilzied. He held when the actual break down of the coach was admitted onvus generally of estabUshing that the vehicle was suffic in so far as skill and diligence could ascertain ;t to be s cient, was truly on the proprietor. That, however, on other hand, he was not bound absolutely to ensure its s ciency, or liable either for necessarily latent defects, or i accidents or disasters. That the true question, in all i cases, is, Whether the overturn was occasioned by neglige And the owner was, in the first instance, at least bounc prove due care and diligence. Lamb reclaimed on the merits, and Lyon as to expei Lord Justicb-Cleek. — Looking to the nature of the claim, . free to admit, that the pursuer was entitled to all these feeling ids favour, which are naturally enlisted on the side of one sufS from such an accident. But the difficulty always is, whether 1 he sufficient grounds for subjecting the party defending, in dam Now, my opinion proceeds entirely on the proof, and I am clear what happened was the result of sudden accident ; I admit that incumbent on the proprietor to prove that the coach was in a i cient and landworthy state, and also that it must appear that accident happened from no negligence on his part, or of those ployed by him, and I have arrived at the conclusion that no b was imputable to him. What happened shews that it was acci merely, and not insufficiency, for the coach set out from Paish the morning, performed its journey in safety, and it was on the re from Glasgow that it broke down from the effect of an accic which, from the testimony of several witnesses experienced in coac might have been caused by a sudden jerk. Holding then that land- worthiness of the carriage has been established, I am for ad ing, but without expenses. Lord Meadowbank (who was against the judgment on the pr said — I think there appears to me to be no difference among i to the law which must regulate this case. It is properly laid d that a coach proprietor does not warrant the safe delivery of pas gers, as he does of goods, he does not insure against accident, bu is bound to provide against accident as far as human foresight DIGEST OP DECIDKD CASES. 63 ■regard for the safety of the passengers can enable him to do. He is Lame v. Lton. to trust nothing to fortune or good luck. If he or his servant, for Coach accident. whom he is also bound, see any deficiency or insufficiency, or crack, or anything doubtful or suspicious about the coach, he will be liable for any neglect in not acting upon his knowledge of what he has observed. But if there be nothing observable, I admit, as^n the English case cited, that for the latent insufficiency he is not respon- sible. If again he hold oiit a particular mode of equipment as add- ing to the security of tlie coach, he is bound to see that that parti- cular mode is sufficient in all respects. Then we do not differ in opinion that the party demanding damage must prove the cause of damage. The presumption is, if a vehicle broke down, it is from some fault which the owner might have guarded against. It is cor- rectly laid down by Lord EUenborough, " at all events he would ex- pect a clear land- worthiness in the coach itself to be established," &c. (Israel v. Clark, 4 Esp. 259). That is the law undoubtedly. Thus when an accident happens, the omis falls not on the party receiving the injury, for the presumption is, that there is a defect, and the law requires, as a duty to the public, that the owner shall prove that all that human skill can do, was done to prevent an accident, for which, if it be ccisMs fortuitus, he is not responsible." Lord Medwyn. — Agreed with the Lord Justice Clerk, and Lord Glenlee — Linch-pins will break from unforeseen and blameless acci- dents, and in spite of every precaution. It is, however, clear from the evidence, that the blame was not in law imputable to Lyon. I do not differ much from Lord Meadowbank upon the general prin- ciples. I think the owner must shew that there was a good coach, and that it was in a workable and sufficient state, so far as the human eye could discern. The history of the coach is contained in the evi- dence of the vritness Campbell, and it appeared that the coach was overhauled about a month before. Now the gravamen in Lord Meadowbank's opinion is the putting on a wheel that had been used upon another coach. But the using of it before shews that it must have been a good wheel, and although a spare wheel, it is found that it fitted equally well with the rest. It is said that it required more grease than the others. But the frequency of the greasing should rather have tended to prevent the accident, as it^ admitted and re- quired of the hnch-pin being examined every day. 13th Febraary 1839. — David Sword, Pursuer, against SwoEDt;. Cameron and' Gellatly, Defenders. — 1 7 D.B.M., p. 493. , gbllatly" Injury from the careless blast- The pursuer was one of several workmen employed by i^s of rock, the defenders, the tenants of the Quarry of Huntingtower. He had been working about a crane at a distance of about twenty-five yards from where other of the workmen were blasting a portion of the rock. It was, the practice before 64 DIGEST OF DECIDED CASES SwoRi) V. firing a shot to give the order to " hap the crane," or c Gellatlt. ii up, so that it might be protected from the eifects of cSf^Ua'ft- explosion. But after the crane was "happed" it was ing of rock, the duty of those employed about it to continue workin its vicinity, removing th-e shivefs of those stones which been dressed, &c., and not to move off until the signal given by the call " fire," which was the warning to esc This signal was sometimes given twice or thrice, somet: only once. The interval was various which elaipsed bet^v the " happing" of the crane and giving the word " fire sometimes only a few minutes, and sometimes much lor On the occasion in question, the order was given to " the crane," and it was happed, by which the pursuer, those along with him were certiorated that a shot was i to be fired. Two of the pursuer's fellow-workmen i moved ofi" from the crane, the pursuer remained bel working near the crane as was customary, and was his d The shot when charged was covered with two or t] "long lintel stones" and nothing else. Several of the nesses thought that a covering of whins, divots, &c,, w( have been safer, or at least, that a covering of more we and solidity should have been employed. After the L of a space of from one to three minutes after happing crane, the signal " fire" was given, and distinctly heard all the men. The pursuer and all the others insta; moved off smartly, at least as rapidly as usual on such casions, none of them lingered, and some of them kept ] ning. The pursuer was in the middle of about half a d< of the workman when he was struck on the right leg b; exploded stone'about the size of a man's head, — and in i sequence of which, the leg had to be amputated. The ] suer was then at the distance of about seventy yards f the shot measured along the road, or in a straight line al sixty yards. The man who fired the shot was about : yards behind the pursuer at the time he was struck. S- ral of the stones flew over the heads of the party am whom the pursuer was. The pursuer and the men had mc ofi" on this occasion in the same manner as was usual at Quarry when shots were to be fired. The time betw the signal and when the pursuer was struck appeared alsi have been about the usual time, from two to three mini; DIGEST OF DECIDED CASES. 65 and it frequently occurred that stones from the shot flew„^^'^^^^''^jj, over the heads of the retreating workmen. Gellatlt. The pursuer pled that he was injured through the cul-oareie'ss™Sast- pable negligence or rashness of the defenders' workman'"^ °*''°''''' who fired the shot, as he did not " hap" or smother the shot with sufficient care, nor give long enough warning before the explosion ; and that the defenders were liable in damages. • The defenders maintained, that the pursuer being a work- man at the Quarry, knew the usual practice, and the same warning was given on this occasion as was usual. That he did not move off so fast as he might have done, and if he had, in all probability no accident would have occurred to him. The injury was consequently in part, if not altogether, caused by his own carelessness, and he alone must bear the consequences. ■ — The Sheriff sustained the defence, and the pursuer advo- cated. The Lord Ordinary (Cockbum), altered as follows : ■^ — 'Finds, in point of fact, that the operation of blasting ' the rock referred to in the summons, was conducted by ' the defenders' servants without due precaution, and ' that it was in consequence of this that the pursuer was ' struck and lost his leg : Finds, in point of law, that in these ' circumstances, the defenders being the employers of those ' whose rashness in their (the defenders') work produced the ' injury, are liable in damages to the pursuer, therefore sus- ' tains the reasons of advocation, advocates the cause, and ' decerns ia terms of the conclusions of the libel, &c.' The defenders reclaimed, but the Court adhered. LoED Gillies. — The interlocutor of the Sheriff was put upon grounds which were plausible in themselves, and ably stated, but I have formed a clear opinion that the interlocutor of the Lord Ordi- nary is right. In his Lordship's note it is observed that, ' it is not ' improbable, that in general, the operation is conducted with 'culpable negligence at all quarries.' In that remark I entirely acquiesce. To all the quarries where I have had any oppor- tunities of personal observation, I think the remark would he appli- cable. In the Quarry of Huntingto wer, where the accident occurred, the proof appears to me to he complete that there was most culpable negligence, not only on the occasion when this accident occurred,, bu,t generally and habitually. The usual notice between the word "fire" and the explosion was so short as to expose all the workmen to the E 66 DIGEST OF DECIDED GASES. SwoKD V. imminent hazard of being struck. The common time was givei '^&ellatlt!''*'^1i^* time was that? It. appears that six or seven of the wori InjuryfromtheWho moved off instantly on the signal ',' fire" being given, and careless blast- j^^d made no lingering, but were pursuing their escape from the 1 ing TOO . .^gj-g all of them within the range of the shot. Is that to be tolei because it was the usual practice of the quarry 1 The fact c being the inveterate practice then affords just the stronger reaso effectually checking it. In regard to what is termed the " hap] of the crane, it is proved that even after that is done, it is the di the workmen to employ themselves in removing shivers of s which had been dressed or otherwise, and not to commence m£ their escape until the signal " fire" was given. The pursijer ployed himseH in that manner, and was so engaged according i( practice of the quarry when " fire" was called out. That signa no doubt distinctly given, and was heard by aU the men, inch the pursuer, all of whom instantly moved smartly of^ accordii their ordinary practice. , But the shot carried a shower of stones their heads, exposing them all to the risk of being wounded. "V that is apparent from the evidence, and the pursuer seeks repar for a serious injury sustained by him in consequence of that cul] negligence or rashness of the defenders' workmen, I cannot aUoi defenders to set up a defence, that they and their workmen aj the practice of exploding, so as to endanger the lives of all concei LoED Mackenzie. — After stating the facts proved, his Lore said, ' That being the case, I do not see any ground left for sup ' ing the interlocutor of the Sheriff, who points ^at the pursuei ' halving used sufficient expedition, to escape, unless it be tho ' that the maxim could apply volenti nonfit injuria. The Engli ' that would just be, that if the pursuer wished to be killed, wh ' him be so. But I am afraid that will hardly do. Suppose tha ' pursuer had walked up to the blast and sat down on the top oi ' ' charge, it could scarcely be pleaded that Duff was entitled th( ' fire the shot, and say that if the pursuer wished to be blown x ' should be indulged. But in truth, when the misapplication o: ' rule volenti non fit injuria is corrected, there is nothing left in ' port of the Sheriff's interlocutor, and the judgment of the ! ' Ordinary must be affirmed.' ■Weston and 10th Jtily 1839. — Weston and SoNS against Incoep ^polTTiorop" TION OF Tailors of PotTereow, and Others.— F. C, Tailoks of p. 1232. POTTERROW. ^ Non-liability fauirOT^lgU- Th® pursuers occupied a shop as booksellers on genoe of tenant, ground-floor of a tenement in Lothian Street, Edinbi The defenders were proprietors of the flat above, and i Pettit was their tenant. The water from the water-c DIGEST OF DECIDED CASES. 67 of the upper flat overflowed, and came through the ceiling Weston and <. ,, > 1 i • -1 , Sons «. Incor-, oi the pursuers shop on two occasions, causing damage to pobation op their stock ; and for the injury thus occasioned, they raised p^bkkow! this action against the landlord and tenant, conjunctly and Nou-iiability severally. At the trial. Lord Meadowbank, in charging the fault or uegU- jury, directed, in point of law, that ' in all cases of this^™"""***'^*"*-' ' sort within the city of Edinburgh, proprietors of upper ' tenements must be liable for any such damage arising ' from the act of their tenant, as is now in issue, as a party ' for whom they are responsible, and who must be taken as ' acting for their behoof He stated that one had no right to expose his neighbour to hazard through the medium of another, for which he may not from that individual be able to geit redress, and he must, therefore, himself be respon- sible; and continued: — 'I therefore lay it down as. law, ' that, if anything has beep done whereby damage has been ' created to the possessor of the inferior tenement through ' the fault or negligence of the tenant of the upper, it must ' be held that it was done by him acting for behoof of the ' proprietors, of the latter, under implied authority from ' them; in fact, he was. placed there as their representative, ' and it must be held that the act was done for their behoof The jury found for the pursuers, but the Incorporation of Tailors having excepted to the charge of the judge, the point was argued before ,the Court; and the exceptions having been allowed, the verdict was set aside, and the landlord assoilzied. LoED MiiDWYN.. — ^Entertaining a difficulty, from the very first; about concurring in this view of the law, I thought that, consider- ing the very general occupation of: property in this country by- tenants, there could be no doubt that, , if our law held the landlord responsible for the act of his tenant, it must figure most prominently in our law-books; and accordingly, I .examined our legal authori- ities,: but without finding any support for such a view of the conse- quences of the relation between landlord , and tenant. No such doctrine is laid down in any of our institutional writers, nor in the treatises of Mr., Bell or Mr. Hunter on this subject. The general rule of law is, that culpa tenet suos mictores; and if wrong has been, done by a tenant put into possession, in the ordinary administration of the property, and to take the proper use of the subject, and if injury has been suflered by another through the tenant, I do not find it anywhere said that the landlord must be responsible,, even 68 DIGEST OF DECIDED CASES. Weston and along with his tenant ; still less previously, or solely liable, u Sons v. iNcoB-it can be shewn that he, was participant in the wrong, by givin Tailors of subject for the very use which has been made of it, and for \ PoTTERKow. use the rent he receives is i paid to him. ^T'^^'dY Again, — When a proprietor lets his house or land to a te fault or negli-'with the view that he shall use or enjoy it without injury t genoe of tenant, neighbour, which he will do if the ordinary care is taken, should the landlord, and not the tenant, be answerable for the of care on the part of the tenant ? Take the case of a tenant a ing his cattle to stray over his neighbour's land. He doei wrong ; his landlord did not mean him to do it, and he neec have done it; why should not he himself repair the mischief? cordingly, I never understood that for this the landlord coul convened. This is one of the most common cases in which one suffer from the negligence of a tenant. Accordingly, the tens alone held responsible ; the obligation to keep the fences in i is laid upon him; and to make his responsibility more effectual statutory law gives peculiar remedies against him and his c The law of England on this subject is the same. It is the ooc who alone is liable, unless the landlord has covenanted with hi repair the fence. — (Chitty's Prac, i. 383.) Again, — I am of opinion that the law has not been correctly down in this part of the charge. This, however, if followed b; jury, sufficiently warrants the verdict; and it seems unnecessa go farther, and consider what is laid down as to the constructi the water-closet as an independent ground of the liability oJ landlord. If it be faulty, and damage necessarily and immedi arose from it, I have no doubt that the landlord would be li certainly in rehef to the tenant, perhaps .directly to the part jured — a point he would not probably struggle ; but if the cons tion was usual in houses of that description, if it had been pr for many years without going wrong, and then by an overfic water in consequence of the tenant, or some one in his house observing that, when the handle was pushed down, the watei not cease to flow from the jambing of the wire not allowing valve of the cistern to shut — a fault easily and immediately c by shaking the wire— I have great hesitation in thinking that would come under the rule, which would make a landlord res sible for a faulty construction, even although another construe might have prevented it. The charge as to the responsibility oJ tenant for damage arising from his act, is unexceptionable, hi not concluded with holding both parties liable for the acciden the jambing of the wire, and that the responsibility of the te would be better considered in the question of mutual relief het\ the two parties. This evidently made the jury waive the que! of the responsibility of the tenant, leaving the landlord to seel relief against him. Lord Justice Clerk. ^I have considered this case and looked the authorities, as to which I have been very much anticipatec the remarks which have been now made, liis case was prep DIGEST OF DECIDED CASES. 69 and the issues adjusted on the principle of including both landlord Weston and and tenant, so that it should be ascertained on whom the responsi- p*^ATioN°oF' bUity should lie. The issues are in the same phraseology with re- Tailoks of gard to both defenders. Now it appears to me, that though there •J'°'^^?m2^' are parts of this charge (which is fuUy given), that are sound, yet as onanSord ^r to the proppsition contained in the first part of it, as read by Lord fault or negli- Medwyn, and also as to the concluding portion of the charge, the S^noe of tenant. objections taken to it must be sustained ; for keeping in view the nature of the action and the issues, it would have been unnecessary to put them alternately, if the law, as expounded in these parks of the charge, is the law of the case. But the very putting of them shews that it would have been necessary to prove, before a verdict could be obtained against the Incorporation, that the damage was occasioned by them, or others acting for their behoof. Now to hold with reference to such a tenement, that the owner, whether he reside in Edinburgh or not, is liable for any damage arising from the acta of his tenant, and that it is of no consequence whether it is wilful and malicious, or from the negligent or unskilful use of the subject let, ' if the landlord is to be liable, without taking the tenant into view, and the pursuers are not bound to look to the tenant at all, I have some difficulty in being able to discover a principle to entitle us to concur in that part of the charge. I cannot agree in thinking that this erection carries nuisance on the face of it. If it is constructed in the ordinary manner, and not so as necessarily, or in extreme probability, to occasion damage from its ordinary use, there is no farther liability on the landlord. But if by neglect, or by what does sometimes occur, viz., mischievous practices on the part of the tenant, or of his family, damage does occur, it is not the landlord but the tenant who is liable. To suppose that the landlord undertakes for the faithful use of this apparatus, I can find no principle of law whatever. When we are considering the liability of the landlord, we are to look at the lease, whether the subject is let in the ordinary way, and with the ordinary circumstances. If it be a nuisance in itself, or so as it may become a nuisance, then according to the dicta of the English law, the landlord is liable, but not when it merely becomes a nuisance from the tenant's fault. If this be the rule in England, it has been also followed here. His Lordship, after referring to other parts of the charge as affect- ing the tenant, thus concludes : — • I may just mention the charge ' that I would have given as to the law applicable to these issues. ' I think that it would have been correctly stated, that if the jury ' were satisfied on the evidence that the landlord had been guOty of ' any fault or negligence, either by himself or by any one employed by - ' him, from which damage had arisen, he would be liable, or if the ' closet had been so constructed as necessarily, or by strong proba- ' bility, to lead to damage; but if it had been made in the usual way> ' so as not to lead to damage except from the ignorance, or the un- ' skilful or mischievous conduct of the tenant, the landlord would not ' be liable, and the case should have gone to the jury on the whole ' evidence as to the wire and the pincers, and that the pursuers had ' proved such an instrument to have been in the possession of Pettit. 70 DIGEST OF DECIDED CASES. sto^t; 19*1i N \ > v n -r t m Court of King's Bench were equally divided — Lords le: terden and Littledale being against liability, while J. Bayh and Holroyd were for it. The present case was distinguishable from it, and fal within the exception stated by the judges — ^there was the no contract with the coachman. In the present case, tl defendants exercised a selection of this coachman, and su; plied him with livery, which he was changing when tl accident occurred. The coachman is, in point of law, tl servant of the hirer. The defendants maintained that there was no distinctic between this and Laugher's case. Kemp was in the er plojrment of Mortlock for this particular duty. Parke, B. — After stating that the Court were of opinion tl circumstances of the case did not seem to make any difference b tween it and the case of Laugher, proceeded : — It is undoubted true that there may be special circumstances which may render tl hirer of job-horses and servants responsible for the neglect of servant, though not liable by virtue of the general relation of mast and servant. He may become so by his own conduct, as by taku the actual management of the horses, or orderuig the servant drive ia a particular manner which occasions the damage complaini of, or to absent himself at one particular moment, and the like. 1 to the supposed choice of a particular servant, my brother Mau thought there was some evidence to go to the jury of the hors being under the defendants' care, in respect of their choosing th particular coachman. We feel a difficulty in saying that there w any evidence of choice, for the servant was the only regular coachmf of the job-mistress' yard. When he was not at home, the defendan had occasionally been driven by another man, and it did not appe that, at any time since they had their own carriage, the regular coacl man was engaged, and they had refused to be driven by another; ai the circumstance of their having a Hvery for which he was measure is at once explained by the fact, that he was the only servant of Mi Mortlock ever likely to drive them. Without, however, pronouncii any opinion upon a point of so much nicety, and so little defined the question, whether there is some evidence to go to a jury of ai fact, it seems to us that if the defendants had asked for this partic lar servant amongst many, and refused to be driven by any othe they would not have been responsible for his acts and neglects. 1 indeed, the defendants had insisted upon the horses being drive not by one of the regular servants, but by a stranger to the jo DIGEST OF DECIDED CASES. 73 master appointed by themselves, it would have made all the differ- Quaemam ». enoe. Nor do we think there is any distraction in the case occasioned Burnett, &o by the fact that the coachman went into the house to leave his hat, ustm^^^sh and might therefore be considered as acting by their directions, and and servant, in their service. There is no evidence of any special order in this case, or of any general order to do so at all times, without leaving any one at the horses' heads. We are here compelled to decide upon the question leff un- settled by the case of Laugher v. Pointer, in which were able judgr ments on both sides. We think the weight of authority and legal principle is in favour of the view taken by Lord Tenterden, and Mr. Justice Littledale. The immediate cause of the injury is the personal neglect of the coachman in leaving the horses, which were at the time in his imme- diate care. The question of law is, whether any one but the coach- man is liable to the party injured, for the coachman certainly is. Upon the principle that qui facit per alium facit per se, the master is responsible for the acts of his servant, and that person is undoubtedly liable who stood in the situation of master to the wrong-doer, — he who had selected him as a servant from the know- ledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obeyj and whether such servant has been appointed by the master directly, or intermediately through the intervention of an agent authorized by him to appoint servants for him, can make no difference. But the Uability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist ; and no other person than the master of such servant can be hable, on the simple ground that the servant is the servant of another, and his act the act of another. Consequently, a tliird person entering into a contract with the master, which does not raise the relation of master and sei-vant at all, is not thereby rendered liable; and to make such person liable, recourse must be had to a different and more extended principle, ^ — namely, that a person is liable not only for the act of his own servant, but for any injury which arises by the act of another person in carrying into execution that which that other person has contracted to do for his benefit. That, however, is too large a position, as Lord Chief-Justice Eyre says, in the case of Btish V. Steinman, and cannot be maintained in its full extent without overturning some decisions, and producing consequences which would, as Lord Tenterden observed, ' shock the common ' sense of all men.' Not merely would the hirer of a post-chaise, hackney-coach, or wherry on the Thames, be liable for the acts of the owners of the vehicles if they had the> management of them, or their servants if they were managed by servants, but the purchaser of an article at a shop which he had ordered the shopman to bribg home for bitn, might be made responsible for an injury committed by the shopman's carelessness while passing along the street. It is true that there are cases — for instance, that oiBush v. Steinman, Sly v. Edgly, (6, Esp. 6), and others— and perhaps amongst them may be classed 74 DIGEST OF DECIDED CASES. QuARMAN V. the recent cases of Randelsort v. Murray, in which the occupiers BuKNEo^, &o. land or huildings have been held responsible for the acts of othe lis1on5*lfoater*^*'i their servants done upon, or near, or in respect of their pi and servant. .<..:perty. But these cases are well distinguished by my brother Littl dale in his very able judgment in Laugher v. Pointer. The rule law may be, that where a man is in possession of fixed property, ] must take care that his property is so used or managed that oth persons are not injured, and that whether his property be manag( by his own immediate servants, or by contractors with them, or thf servants. Such injuries are of the nature of nuisances; but tl same principle which applies to the personal occupation of land houses by a man or his family, does not apply to personal moveab chattels, which, in the ordinary conduct of the affairs of life, a entrusted to the care and management of others who are not tl servants of the owners, but who exercise employments on tht own account with respect to the care and management of gooi for any persons who choose to entrust them. It is unnecessary repeat at length the reasons given by J. littledale for this distin tion, which appears to us to be quite satisfactory ; ^ and the genei proposition above referred to, upon which only the defendants ci be made liable for the acts of persons who are not their servant seems to us to be untenable. We are therefore of opinion that tl defendants are not liable in this case. — Judgment accordingly. MiLLiGAN!). ' 18th November 1840. — Queen's Bench. — Milligan "Wedge Damages against Wedge. — 12 Adol. and Ellis, p. 737. through care- less driving of cattle. Owner The plaintiflf had a show-room, &c., adjoining a publ acts of a lioens- street, and had marble chimney-pieces, &c., exposed for sa ed drover or^Q ^,jig room. A buUock belonging to the defendant, an his servant , ^ ... as alleged, being driven by his servant in his behalf car lessly and negligently; and by reason of the careless, neg] gent, and improper conduct of the defendant by his sa: servant, ran into the show-room, and broke five chimne; pieces. In defence, it was pled that the person drivii the bullock was not employed by the defendant as h servant. It appeared that the defendant was a butcher, and thi on the day in question he had. bought a bullock in Smit] field mSrket. By the bye-laws of the city of London, i person not licensed can drive cattle for hire from Smit field, though the owner may drive them himself The d fendant employed a licensed drover to drive the bulloc DIGEST OE DECIDED CASES. 75 to the defendant's slaughter-hovise, which is within the city. Milligan « The drover employed a boy to drive it to the slaughter- Damages'^" house, together with four other bullocks, which were notJ^™"f^ ."=*' deiendants property, but were to be driven in the same cattle. Owr direction as his bullock. As the boy was driving theactao/aMoens bullock by plaintiff's show-room within the city, the de-g^'j^^^j^'^ ^^ fondant's bullock did the mischief complained" of. The judge at the trial was of opinion that the boy was not the defendant's servant, and the jury having foimd neglect, a verdict was given for the defendant on the first plea; with leave to move to enter a verdict for the plaintiff. At the hearing', on a rule obtained, — Lord Dbnman. — I think we are hound by the late decision, Quarman v. Burnett, which was pronounced after full consideration. It may be another question, whether I should agree iu all the re- marks delivered from the bench in that case. If I felt any doubt, it would be, whether the (|istinction as to the law in the cases of fixed and of moveable property, can he relied on. The doctrine of my brother littledale, La Laugher v. Pointer, is applicable here. The party sued has not done the act complained of, but has employed . another, who is recognised by the law as exercising a distinct calling. The butcher was not hound to drive the beast to the slaughter-house himself; he might not kjjow how to drive it. He employs a drover, who employs a servant, who does the mischief The drover, there- fore, is liable, and not the owner of the beast. I may remark that one might,. perhaps, he reconciled to the distinction between cases of fixed and of moveable property, by considering that, to hold the owner of land or building Hable for injury done in respect of that property, wiU enable the party injured to know more readily from whom he is to seek redress. In Randelson v. Murray, the work was in effect done by the defendant himself at his own warehouse ; if he chose, instead of keeping a porter, to hire one by the day, he did not thereby cease to be Hable for injury done by the porter while under his control ; so as to the decisions upon the Pilot Aot-^-when , it is not necessary to employ a pilot, the master, who has voluntarily employed one, is hable for his act. Here it does not appear that the defendant attended the drover or his servant, and the mischief was done, not in the course of the butcher's business, but of the drover's. Williams, J. — The difficulty always is, to say whose servant the person is who does the injury — ^when you decide that the question is solved. To say that that party is liable from whom the act ulti- mately originates, is, indeed, a rule of great generality, and one which will solve the greater number of questions; but its applicability fails in one case. For when the person who does the injury exercises an independent employment, the' party employing him is clearly not 76 DIGEST OF DECIDED CASES. MiLLiGAN V. liable. I agree in the decision in Randelson v. Murray, for the ware Qai^ge^"' houseman's servant, whether daily or weekly, is equally under th( hrough care- control of the warehouseman ; and that is the way in which Mr ess driving of Justice Storey puts this point — he brings it to the question, Whc ^" employed the person that did the injury? The butcher here, whoii we cannot assume to be acquainted with driving, deputes a persor to drive who understands the business, and whose servant is guiltj of the negligence that produces the injury. That person, therefore, is the party liable. Coleridge, J.- — ^The true test is, to ascertain the relation betweei the party charged and the party actually doing the injury. Unless the relation of master and servant exists between them, the act ol the one creates no liability in the other. Apply that here. I make no distinction between the licensed drover and the boy. Suppose the drover to have committed the injury himself The thing done is in the driving. The owner makes a contract with the drover thai he shall drive the beast, and have it under his charge, and then the drover does the act. The relation of master and servant does not therefore, exist between them. ^Crai^"' Exchequer Pleas. 28th April 1842. — Rapson against :)ontraotor not CuBiTT. — Mees. and Wels., 9, p. 710. iable for ne- ;ligeiit acts of I, sub-oontrao- ipjjg plaintiff was butler, and Lis wife housekeeper, of the ;or or his work- ^ ' >■ ' nen. Clarence Club ; and the defendant vras employed by the committee to make certain improvements and alterations on the Club-house, in the course of which he had to employ a sub-contractor for the gas-fittings. It was alleged that, in consequence of the gross, negligence of the gas-fitter, aB explosion took place, which injured the plain tifi" and his wife, and he claimed damages from defendant. The defendant objected to liability for the negligent acts of the sub- contractor for the gas-fittings. The Lord Chiei Baron, at the trial, directed the juiy to consider whether the injury occurred through the neghgence of the defendant, or any person employed by him ; and the jury found a verdict for the plaintiff, damages L.500 — leave being re- served to the defendant to enter a nonsuit. Lord Abinger. — The rule must be absolute to enter a nonsuit. The injury was occasioned by the negligence of Bland, who did not stand in the relation of servant to the defendant, but was merely a sub-contractor with him, and to him the plaintiff must look for re- dress. I think the true principle of law, consistent with common DIGEST OF DECIDED CASES. 77 sense, was laid down in the case of Quarman v. Burnett, in which Eapson v. all the previous cases on the subject were cited and considered, and q^^j ™^' jjot some overruled. I have always been of the same opinion, and there- liable fomegli- fore see no reason for departing from that decision. S^JJ* ^"^ °^ * Paeke, B. — I am of the same opinion. The plaintiff has his re- ^^ jjls work- medy against Bland, whose neghgence was the cause of the injury, men. If he attempts to go farther, and to fix on the defendant, it can only be on the ground of Bland's being the servant of the defendant ; but then the obvidus answer is, that Bland was only a sub-contrac- tor to do certain of the work, and that the relation of master and servant did not subsist between him and the defendant. The true rule on this subject was laid down by this Court, in the case of Quar- man V. Burnett, which is directly in point, and cannot be distin- guished from the present case. The Court there said : — ' The liabi- ' lity, by virtue of the principle of the relation of master and servant, ' ceases when the relation itself ceases to exist ; and no other person ' than the master of such servant can be liable, on the simple ground ' that the servant is the servant of another, and his act the act of ' another- Consequently, a third person entering into a contract ' with the master, which does not raise the relation of master and * servant at all, is not thereby rendered liable.'' The case has been approved of by the Court of Queen's Bench in MilUgan v. Wedge ; and Lord Denman there said : ' In Randelson y.. Murray, the work ' to be done was necessary work done on the premises. The owner ' would have been liable if he had used his own servants and his ' own tackle ; by hiring a porter and his tackle for a day he could ' not exempt himself from that liability.' Lord Denman there seems to adopt the distinction which this Court, in Quarman v. Burnett, said ought to be taken. If a man has anything to do on his own premises, he must take care to injure no man in the mode of con- structing the work. Whether he injures a passenger on the street, or a servant employed about his own work, seems to make no differ- ence. I think, therefore, that as Bland was a sub-contractor, and not the servant of the defendant, the latter is not liable, and the rule of nonsuit made absolute. 14th March 1842. — Robert Hislop, &c., against Sir P. C. Aislop, &c. ». Durham. — D. vol. xx., p. 1168. LiabuSy on proprietor of On the night of 7th May 1841, Elizabeth Hislop, a young for injury. woman who lived with her father, a workman at the paper miU near Lasswade, fell into an old <3oaI-pit, and was killed. The night was dark, and she had been in a public house with her brother and two female acquaintances — she was sick in the house from the effects of the liquor, and on leav- ing the house leant on the arm of one of the other women. 78 DIGEST OF DECIDED CASES. HisLop, &o. V. In returning home they wished her to go one way, but sh{ ran along the road in an opposite direction. They ran affcei The coal-pit ir Liability on proprietor of old coal-pit for injury. her, but it being dark lost sight of her. which her body was afterwards found was not on the line of the road from the place where she left her friends, to he: father's house. To get at it she must have turned off ai right angles along a private road leading to a farm house but just at the spot where the coal-pit was situated a patl again turned in the direction of her father's house, by whicl she might have regained the highway. From, the pursuer's evidence it appeared that the fencing of the pit was insecure, the cradle which had covered ii being quite rotten. The deceased was industrious and skil- fill, and besides serving at home, she made about 6s. a-weei at the paper miU. The action was by the father for damage for the loss of his daughter, and also by the brother and sisters foi solatium. The defence was, that sufficient precautions had been taken to free him from liability. That it was not necessary absolutely to exclude the possibility in any one recklessly or designedly getting into the pit, especially as no strangei could be at the place, except by what was at the best a tolerated trespass. To create a claim for reparation, there must be what there could not have here been, the exercise of ordinary care and attention on the part of the sufferer. Lord President. — This case is of importance not merely to the parties, but also to the law. It is admitted that the defender is the proprietor of the lands on which the coal-pit is situated, where the deceased's body was found, and the question is put, whether the defender wrongfully failed to have it properly secured, and whethei in consequence of that failure the deceased fell accidentally in, and lost her life. As to the rule of law applicable to a case of this na.ture, there can be no doubt. It is clearly laid down in the institutional writers, and is evinced in the cases referred to by the pursuer, in none more clearly than that of Black. There you have the elements that enter deeply into the present case, for not only was there a fence, but one which had originally been ample. I have no occasion to call in question the doctrine which the defender has supported from the English cases, that there must he due caution on the part of the suiferer, and that it is not necessary to furnish what will protect even the unreasonable or absurdly reckless. The doctrine does-iiot iater- DIGEST OF DECIDED CASES. ^9 fere with, the case of Black. The words of the issue properly de- Hislop, &o. v. scribe the fencing required, viz., 'whether the defender wrongfully ^jg^j,!]!^""*^ ' failed to have the said coal-pit properly secured or protected, and proprietor of ' that in consequence of the said failure the said Elizabeth Hislop fell o'l^ ooal-pit ' accidentally in it.' °^ injury. You will also consider what effect in the defender's favour the circumstance should have that the deceased was drunli when she left her companions, and that she strayed out of the way in getting to the pit. You will observe that the evidence as to /the sufficiency of the fencing is very contradictory. It is for -you to discriminate where the truth lies. If you think it has been proved that it was insufficient, and that in consequence the deceased met her death, it is clear in law notwithstanding her being out of her way or drunk, that the defender is liable. On the other hand, if you think the pit has been proved to be so well fenced, that it could only be broken into by violence, you will find for the defender. If you. are. satisfied that the defender is liable, you will give fair and reasonable damages with reference to what occurred, the injured feelings of the pursuer, and the proved industrious habits of the deceased. But you will also take into consideration the state of the deceased, which, in some measure, led to this dreadful catastrophe. Verdict for pursuer, Eobert Hislop, damages £.300. 16th July 1842. — The New Clyde Shipping Company, newCltde Pursuers, against The Riveb Clyde Trustees, -De/gji-^l^TcLTOi ,^ers.-14 Jurist, p. 586. " KonrSw'c ^ ' the trust fund The Shipping Company claimed damages a^inst the Rivpi'aoteorservart. Clyde Trustees, to the extent of £196, 16s. 4d., as loss sus- tained by the ' listing' of their steamer 'Alberji' in the ha,rboyr at the Broomielaw, caused by the alleged improper opera- tions ofthe defenders by a partial dredging of the river, and by the omission, or fault of the Harbour Master in not order- ing the jiecessary operations for removing the threatened danger, although required so to do. The case came by .advo- cation from a judgment of the SheriflF, assoilzieing the, de- fenders in respect of the ca-se of Findlater, which occurred during the, dependance. The Lord Ordinary (Cuninghame), pronounced, the following interlocutor:—' Wth Mfiy 1842-. ' Having resumed consideration of this advocation, with ' the revised cases, proof ia the inferior court, and whole pro- ' cess; Finds, * that the advocators under their libel in J;he ' inferior court claim damages from the resppn4ents„.the far- 80 DIGEST OF DECIDED CASES. New Clyde ' liamentary Trustees, for improving the navigation of the iivEK CLTi)E' river and frith of Clyde, for damages sustained from the Jon-uSty ' ^^^^* ^^^ omission of the defenders' Harbour-Master at the f .*H Trust' Broomielaw to provide safe harbourage for a vessel of the roper acts of' pursuers, in August 1836, "which, it is alleged, was placed ervants. ' in an unsafe and improper berth by the said Harbour Trus- ' tees, whereby she listed, or was upset in the harbour, and ' received damage to the extent of £196 in her cargo and ' hull : Finds, in point of fact, that it is established by the ' proof that the steamboat called the Albert, belonging to ' the pursuers, was moored in a berth of the Broomielaw ' harbour, selected or sanctioned by the Harbour-Master, or ' other servant of the defenders, and that she had then a ' full cargo on board: Finds it proved that the damage in ' question arose from the unskilful and improper operations ' followed by the servants or workmen employed by the ' defenders in deepening the solum of the harbour next the ' said berth, whereby the vessel was laid on unequal at low ' water, and was exposed to be wholly or partially laid over' ' on the return of the tide: Finds it proved, that from that ' cause the pursuers sustained damage, at the date libelled ' on, to the amount concluded for in the libel; but finds it • not proved that that damage was, in any respect, caused ' by any personal misfeasance or culpa on the part of the ' defenders: Finds, in point of law, that the said proof is ' not sufficient to estabhsh a claim against the defenders, ' or the trust funds in their hands, which they are bound ' to appropriate in terms of the statutes under which they ' act, and in no other way: On these grounds approves of ' the interlocutor of the Sheriff-depute on the merits, but ' finds that, from the state of the law as understood and ' acted on in Scotland, under decisions of this CcTurt in • analogous cases, for years previous to the institution of ' the present action, and down till the decision of the House ' of Lords in the case of Fmdlater, which was not pro- ' nounced till this process was in an advanced stage, it is ' not reasonable or just to subject the pursuers in expenses.' Note. — ' When the advocation came to be discussed be- ' fore the Lord Ordinary, it was stated by the advocators • that there were peculiarities sufficient to distinguish the DIGEST OF DECIDED CASES. 81 ' present case from that of Findlater; and as this question New Clyde ' has been before this Court since the decision in that case, e^"''cltoe ' in -which the principles of that judgment, and the extent ^^"^T^^^jj ' to which it falls to be applied, fell to be considered, the^o'^'iegiigence ' Lord Ordinary allowed parties to state their argument in ' cases. On considering the argument in these papers, how- ' ever, he has not been able to satisfy himself that there are ' any gi'ounds for giving a different determination in the ' present case from that which was decreed by the Court of ' last resort, in the case of Duncan v. Findlater. ' In the present case, as in Findlater's case, the defenders ' act solely as parliamentary trustees over the estate com- ' mitted to their charge. That estate is held by them not ' for private interest or profit, but solely for the benefit and ' use of the public. It is not alleged that the defenders per- ' sonally were guilty of any wrong, either in the 'excavation ' of the harbour, or in the selection of the berth for the pur- '^suers' vessel In both cases the trustees have power to "miame overseers, and the defenders appointed a harbour- ' TOaster whose general qualification for the duty is not im- ' peached; and in this case, as well as in Findlater's, the ' trustees are very strictly limited by the terms of the statute ' Tinder which they act, in the appropriation of the rates re- ' ceived by them. ' These are circumstances common to both cases. In what, ' then, does the present csise and that of Findlater differ? ' The main specialty relied on by the pursuers seems to be, ' that their damage is said to have arisen from a failure, oil ' the part of the defenders, to ftdfil the counterpart of the ' very contract under which the pursuers paid harbour dues, ' They stated that they paid £2000 annually of such dues ' to the defenders — ^that these were given for safe shelter — ' and if their property was negligently so placed by the de- ' fenders' servants as to suffer great damage, there was an ' implied stipulation on the part of the defenders to repair ' the loss. This certainly appears a strong view of the case, ' both on legal and' equitable principles ; but it is doubted ' if the very same argument was not equally maintainable in ' Findlater's case. The travellers on a toad pay tolls for ' well-constructed and safe roads ; some stage-coaches pay as F 82 DIGEST OF DECIDED CASES. New Clyde ' large a sum of tolls as the pursuers pay here of harbour tivER Clyde' dues; and it is now laid down by authority not to be fon-UaMiitv ' qiiestioned, that if a coach is overturned when filled witt or negligence ' passengers, whose lives are of the greatest value to theii ' families, yet if the injury has arisen from the neghgence ol ' subordinate persons, whom trustees are authorized to em- ' ploy, the sufferers must seek redress only from the wrong- ' doers, and not from the trustees or trust funds. In sue! ' cases where the funds are appropriated by statute to spe- ' cific purposes, and every other apphcation of them pro ' hibited, there is no implied contract which entitles anj ' party to attach them for any damage or failure of dutj ' committed by subordinate servants. The remedy is againsi ' the individuals who committed the wrong, and not againsi ' the trustees. ' This seems to be the import of all the cases in Englisl ' practice, which are now held to be equally applica.ble to oiu ' law. According to the view taken in Findlater's case in ' the House of Lords, it was held that the powers and liabili- ' ties of statutory trustees, should in general be the same ir ' both ends of the Island, and as it was thought there was ' no practice in Scotland prior to 1820, which recognised th( ' right of private parties to sue road trustees for damage no1 ' authorised or contemplated by any statute, the House o: ' Lords held that the responsibility and liability of trustees ' in this country must be governed by the same rules unde: ' which such trustees act and are protected in other parts o: ' the kingdom, subject to the statutes of the same parliament ' Generally the rule of law seems to be firmly established ii ' England, that no action lies against public functionariei ' personally, for acts done by them in a corporate capacity ' from which detriment happens to the plaintiff, at least nol ' without proof of negligence, and from what passed in Find ' later's case in the House of Lords, their Lordships were o ' opinion that there was no authority or practice in Scotlanc ' to preclude the Court from giving effect to the same prin ' ciples in our law in favour of public trustees, as effeetuallj ' founded on justice and pubHc policy. There was only on( ' ground on whidfh it occurred to the Lord Ordinary that i ' plea of feasible relevancy might be set up for the pursuers DIGEST OF DECIDED CASES. 83 ' If it had been made out that the dama,ge was sustained hv „^*""' Clxdb ° •' Shipping Co.» ' operatioBS on the bed of the harbour, apparently in the Eivek Oltdk ' course of a permanent alteration and improvement of itsNon-Uabiiity ' construction, as such operations cannot be completed in one ^"^^g"®!^]^^^"''® ' day or week, while in their unfinished state, vessels fre- ' quenting the port must be exposed to certain hazards which ' are unavoidable, a question might arise, whether the damage ' could not be claimed as part of the necessary expense of ' improving the harbour. But if that were a legitimate claim ' under this act, it should have been brought in terms of the ' Act 6, George IV., sect. 84, within twelve calendar month* ' afler the damage or injury were sustained. The action here ' was not brought for nearly two years, and that of itself is ' fatal to any claim as against the trustees. See Lord OaMey ' V. Kensington Canal Company, (5 Bam. : and Aid. 138.) ' Besides, the action is not laid on the ground now indicated, ' but On the ignorance, or misfeasance of the Harbour Master, ' for which the statutory trustees are now held not to be ' responsible.' The pursuers reclaimed but the Court adhered. Nov. 4, 1842. — Davis against Mann. — Mees and Wels, 10,DAvist).MAiiN. K < fr Liability of p. 547. master for negligence of servant. The plaintiff" sought to recover damages for the loss of a donkey, eaused, as he alleged, by the careless, negligent, un- skilful, and improper conduct of the defendant's servant, who was driving a waggon and horses along the road, and ran the said waggon on the donkey and killed it. It appeared that the plaintiff fettered the fore-feet, of the ass, and turned it into a public highway, and at the time of the accident, the ass was grazing on the off-side of the road about eight yards wide, when the defendant's waggon with a team of horses coming down a slight descent, at what was termed a smartish pace, ran against it and knocked it down. It was proved that the driver of the waggon was some little dis- tance behind the horses. The Judge at the trial told th^ jury, that though the act of the plaintiff, in leaving the donkey on the highway so fettered as to- prevent his getting out of the way of carriages travelling on it might be iUegal, 84 DIGEST OF DECIDED CASES. Javisi;. Mann, still jf ^^g proximate cause of the iniury was attributable [liability of ^ ii?j.T_j-i naster for to the Want 01 proper conduct on the part oi the driver ol 'e^nt^"^" tlie waggon, the action was maintainable against the de- fendant. He directed them that, if they thought the ac- cident might have been avoided by the exercis6 of ordinary care on the part of the driver, to find for the plaintiff. Verdict for plaintiff, damages 40s. The defendant moved for a new trial, on the ground oi mis-direction. He maintained that the principle of law as deducible from the cases, is, that when an accident is the re- sult of faults on both sides, neither party can maintain action. Here the plaintiff, by fettering the donkey, had prevented him from removing himself out of the way oi accident. Had his fore-feet been free, no accident would probably have happened. LoED Abingbr, C.B. — I am of opinion, that there ought to be nc rule in this case. The defendant lias not denied that the ass was lawfully on the highway, and therefore we must assume it to have been lawfully there; but even were it otherwise, it would have made no difference, for as the defendant might with proper care have avoided iajuring the animal, and did not, he is liable for the conse- quences of his neghgence, though the animal may have been impro- perly there. B. Pakkb. — ^This subject was folly considered by the Court in the case of Bridge v. The Grand Junction Railway Company, where, a^ appears to me, the correct rule is laid down concerning negligence, namely, that the neghgence which is to preclude a plaintiff from re- covering in an action of this nature, must be such, as that he could by ordinary care have avoided the consequences of the defendant's negligence. In that case there was a plea importing neghgence or both sides, here it is otherwise, and the judge simply told the jurj that the mere fact of negligence on the part of the plaintiff in leaving his donkey on the pubhc highway was no answer to the action, un less the donkey's being there was the immediate cause of the injury and that if they were of opinion that it was caused by the fault o: the defendant's servant in driving too fast, or, which is the sam( thing, at a smartish pace, the mere fact of putting the ass on th( road would not bar the plaintiff of his action. All that is perfectly correct, for although the ass may have been wrongfiiUy there, stU the defendant was bound to go along the road at such a pace as would be Jikely to prevent mischief. "Were this not so, a man migh justify the driving over goods left on a pubUc highway, or even ovei a man lying asleep there, or the properly running against a carriag< going on the wrong side of the road. GuKNBY, B., and Kolfb, B., concurred. — Eule refused. DIGEST OF DECIDED CASES. 85 27th January ] 844. — ^Dow, Pursuer, against William ^^^^^Qg Brown and Co., Defenders. — 16 Jur., p. 248. Damages— stearabqat ex- plosion. ■ The pursuer's wife had taken a passage on board the steamboat ' Telegraph,' which sailed between Glasgow, Greenock, and other places on the Clyde. She was killed by an explosion of the vessel oif Helensburgh, on 21st March 1842. The steamer belonged to the defenders. The summons alleged that the ' Telegraph' was, in reference to her frame or build, her fitting up, and whole arrangements, constructed with the view of insuring: the greatest possible speed, and with the intention and purpose of competing with the carriages on the Glasgow and Greenock Railway, the boiler and engine weighing only eight tons, being framed in imitation of the locomotive engines employed on railways, and worked on the high pressure principle. That the said explosion, and consequent destruction of the ship and en- gines, and the death of the said Isabella Keith or Dow, were occasioned by the insufficiency or mal-construction of the said steamboat, or of the engines, boUer, or machinery thereof, or of the materials composing the same, or by the culpable rashness, ignorance, unskilfulness, gross negligence, and misconduct of the owners of the said steamboat, or of those who had charge thereof at the time, under their employ- ment, and for whom they are responsible. That the pursuer had suffered severe injury and loss by the sudden and violent death of his said wife, in his feelings, comfort, and domestic happiness, for which he is legally entitled to reparation from the defenders ; and concluded that ' the said defenders ought ' and should be decerned and ordained, by decree of the Lords ' of Council and Session, conjunctly and severally, to make ' payment to the pursuer of the sum of L.5000, in name of ' solatium and reparation to him for the loss and injury ' aforesaid.' There was no conclusion for direct patrimonial loss. It was admitted in defence that the explosion caused the death, but it was denied ^that the calamity was occa- sioned either by the construction of the vessel, or that it arose from negligence ; but it was said to be the result of accident. Preliminary defences were stated, and, among others, ' 4. In so far as the summons contained, and. was iri- 86 DIGEST OF DECIDED CASES. Dow ». < tended to enforce a claim of solatiwm, it was irrelevant Beown & Co. _ ' Damages— • and could not be maintained by the pursuer as the husbanc plosion. ' of the party whose death constituted the ground of action ' more especially as no anvmus 'iMJuricmdi was alleged ' against the defenders.' The Lord Ordinary repelled the pre- liminary defences, and sustained the relevancy; and the defen- ders acquiesced, except in so far as referred to the fourth plea At the calling of the case in the Inner House, the defenders were proceeding to support the plea, when the Court inter- posed, holding that it was not an open point, — Lord Med- wyn observing, that it was raised and discussed in the case o{ Drummond v. Brown and Children, 26th Feb. 1803. F. C, and other cases. The Court accordingly adhered. Caepueu. 8th Februarj' 1844. — Queen's Bench. — Carpue against Brighton ThE LONDON AND BRIGHTON RAILWAY Co. Railway S-t ml: Cases, (Carrow and Oliver), 3, p. 692. lagement of Presumption'of '^^^ '^^ ^^ action against the defendants for damages loSdenrPrio'*'*'^^ account of injuries sustained by the plaiutiff, a passengei lotioe of action on the railway, The train in which the plaintiff was tra- velling had been thrown off the raHs, in consequence, as he alleged, of the want of due skill and care in convejdng him. and through negligent conduct in the management of the train. The defendants were owners and proprietors of the Lon- don and Brighton Railway, and of the carriages used foi conveyance of passengers on and along the said railway, and certain other railways — ^viz., the London and Greenwich Railway, and the London and Croydon Railway. The plaintiff took a ticket from London to Brighton on the 2d October 1841, and the declaration proceeded: — 'The said ' Company then received the plaintiff as such passenger as ' aforesaid, and therefore it became, and was the duty of ' the said Company, to use due and proper care and skOl ' in, and about carrying and conveying the plaintiff on his ' said journey, but took so little care, and so negligently ' and unskilfully conducted themselves in, and about carry- DIGEST OF DECIDED CASES. 87 ' ing and conveying the plaintiff on his said journey, and Oarpued. ' in conducting, managing, and directing the carriage in Brighton ' which the plaintiff was such passenger as aforesaid, 9'iidNeKiJmt^ma ' the train to which the same was attached, and the engines n^^eement of ' whereby the said train was drawn upon and along the Presumption o ' said Company's said raUway : That by reason of such ■w-antaoSdent.°Prira ' of care and skiU of the said Company, the carriage which "°''™°*?'Oti<»: ^ •' ° under Btatute> ' contained the plaintiff was then thrown and cast with ' great violence from and off the rails of the said last-men- ' tioned railway, and was then overturned, crushed, and ' broken to pieces, and thereby the plaintiff was thrown ' out of the said carriage with great, violence, and was ' grievously bruised, wounded, and injured ; and also by ' means of the premises, the plaintiff became sick, sore, ' lame, and disordered, and so remained and continued for ' a long time, to wit hitherto; during all which time the ' plaintiff suffered and underwent great pain, and was hin- ' dered and prevented from transacting his necessary and ' lawful affairs by him during aU that time to be performed ' and transacted, and lost and was deprived of divers great ' gains, and profits, and advantages, which he might and ' otherwise would have derived and acquired in his pro- ' fession of a surgeon ; and thereby, also, the plaintiff was ' forced and obliged to, and did then pay and expend divers ' monies, amounting, in the whole, to the sum of £200, in ' and about endeavouring to be cured of the said bruises, ' wounds, and injuries, and hath been and is, by means of ' the premises, otherwise greatly injured and damnified,' &c. The defendants pled — not guUty. At the trial, before Lord Denman, C. J., at the mid- summer sittings, 18 4) 2, it appeared that the position of the rails had been somewhat deranged at the place where the injury took place, and that the train was proceeding, at a rate which was dangerous, considering the state of the rails. For •the defendants it was contended, that by their act they were entitled to twenty days' notice in writing of the ac- tion. The Chief Justice reserved leave to move for a non- suit. His Lordship referred to the evidence as to the state of the rails, and told the jury that they must be satisfied that the accident had been occasioned by the negligence of 88 DIGEST OF DECIDED_CASES. Oakpdb». the defendants: and that as the exclusive management oJ Brighton the tailway and machinery was in their hands, it was tc JeSJfnt^ml-^^ presumed that the accident arose from their want of care lagement of unless they gave some explanation of the cause, which the Presumption of plaintiff could not be expected to give, not having the same "S&Prio^eans of knowledge. lotioe of action The jury found for the plaiatiff. — In Hilary term, 1843, Sir W. Follet, Solicitor-General, obtained a rule nisi for a nonsuit, on the ground of the want of notice; or for a ne"w trial for misdirection, in telling the jury that it was foi the defendants to disprove negligence, rather than for the plaintiff to prove it. Sib F. Pollock showed cause. Tlie question is, whether th« matter complained of is within, the 253d section of the Act. The protection claimed here was never intended, but was to be confined to powers in making and maintaining the railway, not to the use bj the Company, in common with others, of the road when finished: such a construction would be opposed to the pubHc good This is an action against the defendants, not as a railway company, but as carriers, for they are mere carriers on the Greenwich and Croydor EaUways, on which a part of the journey is performed; and it is impossible that there should be a different rule as to safe carriage or on one part of the journey and on another. If a coach accideni occurred from fast driving over a part of a turnpike road which was dangerous from want of repair, it would be no answer to an actior against the coach proprietor to say, that the commissioners of tht road might be sued, and were entitled to notice of action. The same principle holds here, where the carrying business was improperlj conducted with reference to the state of the railway. The Conipanj are responsible as carriers, as they knew, or had means of knowing that the state of the railway demanded greater care and caution They are not compelled to become carriers, though they may b( compelled to keep the railway in repair for such a purpose ; but thej may abandon it, when the land will, by sect. 130, revert to th( original owner. The contract, therefore — the breach of which ii complained of — to carry safely from London to Brighton, is not j thing done in pursuance of this act. In Palmer v. The Oram Junction Raihoay Company, (2 B. and Ad, 172,) it was held that under a similar clause, a railway company were not entitled to notice of action against them for misfeazance as carriers. It is true that it that case the damage was to goods of which carriers are insurers ; bui the only difference is, that in that case negligence is presumed — ii the case of passengers, it must be proved; therefore, if negligence b( proved against them as carriers, the case iS out of the 253d section The only question is, whether there has been neghgence. If not their defence is under the general issue. Sir W. FoLLET, and Thesiger. — The question is, whether thii DIGEST OF DECIDED CASES. 89 action is brought against the defendants simply on the grouiid of Oarpue v. their being carriers, and not as proprietors of the railway. If they London & unite the characters which their Act empowers them to do, they are railway Coy. liable under circumstances for which another carrier on the line NegUgent ma- would not be liable, and are therefore entitled to notice of action, S„|^™„ J\ja4 even for negligence in. carrying. In the course of the case at the Presumption of trial, much evidence was given as to the state of the road, which negligence by was found to have been caused by the derangement of the rails, ^^"j^g'^j ^^y°^ That was clearly a matter ' omitted to be done' by the Company, as under statute. in Smith v. Shaw, (10 B. and C, 277,) a company having power under a statute to direct the mooring and unmooring of vessels in their dock, were held to be entitled to notice in an action brought against them for giving improper directions. (Pattison, J. — This is not an omission to do a thing, but doing it in a negligent and im- proper manner. Carrying passengers negligently is not an omission to carry them.) The case of Palmer (4 M. and W., 766) was also referred to. As to abandoning the railway, under sect. 130, while the Company keep it open under the Act, they must keep it in re- pair. (The second objection against the direction of the Chief Justice being that for a new trial, on the ground of misdirection, was aban- doned in the argument.) LoED Denman, C. J., delivered the judgment of the Court, (Den- man, Patteson, Coleridge, and Wightman). The only question for decision in this case is, whether the defendants were entitled to notice of action under the 253d section of their act. For the necessity of such notice it was urged that, as the declara- tion charged the injury done to the plaintiff to have arisen from the Company's omission to perform certain works required by the act of Parliament, the complaint was, in substance, a complaint of some act done, or omitted to be done, under the act, and therefore the action could not be maintained without notice. In support of this argument, the dictum of Parke, B., in Palmer v. The Grand Junction Railway Co., was cited. The notice was not thought in that case to be necessary, but the learned Baron states that, ' if the action was ' founded on neglect in not duly fencing the railway, on account of ' which the travelling on it was dangerous to those passing along it, ' assuming that such an objection resulted from the 180th section, ' or from the general provisions of the act, that case would have * fallen within the 214th section, (the section requiring notice). ' But when the matter is looked at and explained,' he says, ' it ap- ' pears that the action is not of that nature, but the defendants are ' sued as common carriers ; ' and then he comments on the facts proved in that case. In deference to that dictum, at the trial leave was given to move to enter a nonsuit, and a rule to that effect was granted, and has been fuUy discussed before us. We are not, however, now called upon to consider how far the law laid down in that dictum is correct, be- cause we think it is clear in this case, as the learned Baron thought in that, that the injury has arisen from the defendants' misconduct as carriers, and not as railway proprietors. Although, in examining 90 DIGEST OF DECIDED CASES. Cakpue v. the evidence against them as carriers, it was impossible wholly ti London & exclude some reference to the proof given as to the state of the rail Jail WAY Cot. '^^J- -^ the defendants are liable in the character of carriers, th STegiigent ma- Court thioks that no foundation exists for any argument in favou in6™nd*tr°* °^ ^^^ necessity of notice under the act. The plaintiff is, therefore Presumption of entitled to retain his verdict, and the rule for a nonsuit must bi legligence by discharged. Sofac^n Eule discharged. luder statute. The 253d section of the Railway act referred to is as follows:—' That n( ' action, suit, or information, nor any other proceeding of what naturi ' soever, shall be brought, commenced, or prosecuted against any per ' son or corporation for anything done, or omitted to be done, in pur ' suance of this A.ct, or in the execution of the powers or authorities, oi ' any of the orders made, given, or directed in, by, or under this Act ' unless twenty days' previous notice in writing shall be given by th< ' party intending to commence and prosecute such action, suit, infor- ' mation, or other proceeding, to the intended defendant ; nor unless ' such action, suit, information, or other proceeding, shall be brought ' or commenced within six calendar months after the act committed ; oi ' in case there shall be a continuation of damage, then within six ' calendar months next after the doing or committing such action ' shall have ceased; nor unless such action, suit, or information, shall ' be laid and brought in the county and place where the matter in dis- ' pute or cause of action shall arise.' Brash and 27th February 1845. — Brash and Others, Pursuers, against °™™eS;.^' William Steele, &c., Defenders. — Jur. 17,^ p. 267. )oaohacoident, D. B. M.. 7, p. 539. This "was an action of damages at the instance of the widow and children of Robert Brash, who was a passenger by the 'Defiance' coach, on 8th July 1845, when it was overturned in Selkirk, whereby he was seriously injured, and died on 19 th July. The issue was, — ' Whether, on ' said day, in or near Sellsirk, said coach was overturned, ' by the unskilfulness, rashness, or negligence of the driver, ' then the servant or in the employment of the defenders ; ' and whether the deceased Robert Brash, being an outside ' passenger on said coach, thereby received severe bodily ' harm, or such bodily injuries as caused his death, on or ' about the 1 9th day of said month of July, to the loss, in- ' jury, and damage of the pursuers, or any of them.' The defenders alleged that the deceased was of such habits that he lived separate from his wife and family for some years, and that in place of supporting them, his wife allowed him a provision of L.80 a-year, which exclusively belonged to her. They moved for a commission and diligence to re- cover documents to prove this. Among other writings DIGEST OF DECIDED CASES. 91 specified on this item appeared : — 4. ' All letters between OT^^isiTw ' the deceased and J — ■ — S. — • — , his servant, to show that Steele. ' the deceased had lived on improper terms with her.' The miatima. ' Court granted the diligence, being of opinion that everything affecting the value of the father's life was relevant. The only difficulty entertained was as regarded the letters in the hands of the servant. Lord Moncrieff observed, ' My diffi- ' culty is, as to the interest of the third party, not here. ' As to the correspondence in her possession, she can pro- ' tect herself : as to others, she has herself to blame if she ' wrote them — -of course, the letters to be recovered are only ' such as go to prove the averments on record.' 1 3thDecember 1845. — Charles Morton against The Edin-mobton».The BURGH AND GLASGOW Eailway Co. — 18 Jurist, p. 134..|^^™™j* D. B. M. 8, p. 288. watOo. Railway acci- dent. This was an action at the instance of Mr. Morton, as factor loco tutoris for the children of the deceased Thomas Cooley, horse-dealer in Glasgow, who was kiUed on the rail- way as alleged, through the fault of the defenders, while travelling as a passenger to Edinburgh. The following was the issue got by the pursuer for the trial of the case : — ' It being admitted that, on or about the 19th day of May 1845, the said deceased Thomas Cooley ' was killed while passing from Glasgow to Edinburgh in a ' railway carriage belonging to the defenders. Whether the ' death of the said Thomas Cooley was caused by fault, ne- ' gligence, or want of skill on the part of the defenders or ' others, or another in their employment, and for whom ' they were and are responsible, to the loss, injury, and • ' damage of the said Mary -Cooley and Thomas Cooley, or ' either of them. Damages laid at L.5000.' The defenders admitted the death. They objected to the pursuer's issue, and proposed the following : — It being also admitted, that the death of the said Thomas Cooley was caused by fault, negligence, or want of skill on the part of the persons in the employment of the defenders, and for whom they are responsible, to the loss, injiuy, and damage of the said Mary Cooley and Thomas Cooley, What is the amount of the said 92 DIGEST OF DECIDED CASES. EDraBUKGH"&^°^^' "y^'^J' ^^^ damage? The Lord Ordinary made avi- 3LASO. EAiL-zandum to the Second Division of the Court, and it waf Railway aoci^ oraJly debated before the judges of both divisions. ieut. LoED Justice-Genbeal. — We are now adjusting issues, and hav< to determine which issue ought to be adopted. The defenders pro pose, by an admission, to narrow the question to be tried betweei the parties. They propose to make an admission ia the very wordf of the pursuer's issue ; but the question is, Whether, by such ai admission, they are entitled to exclude the pursuer from bringing th( whole circumstances of the case before the jury ? In a case of this description, I think the way and manner of the accident is a mosi important element for consideration in fixing the amount of damage, In' the case of Brown v. M'Gregor, in 1813, before the introductioii of the Jury Court into Scotland, the Court took into view the verj pocuUar circumstances of that case. There was a race between the driver of a pubUc coach and the driver of a private chaise. The driver of the coach had been drinking, and his master had had his attention called to the state he was in, yet he allowed him to go on. The race took place, the coach was overturned, and the passenger killed, The Court, in that case, found the proprietors hable, on a view oi the whole circumstances of the case. Brown, the passenger who was killed, was insane, and on his way to a madhouse ; and the Court taking that into account, along with the circumstances attending the death, awarded L.800. It is impossible to doubt that, if it should appear on evidence in this case, that the accident was the result of gross negligence, and one which could reasonably have been antici- pated ; that that would be a most material fact for the consideration of the jury in determining the amount of damage. I do not think, therefore, that the defenders can step forward and attempt, by an admission of this kind, to prevent the pursuer bringing his case fully and fairly before the jury. We know that the jury should not give vindictive damages, and that it will be the first duty of my learned friend, who is to preside at the trial, to tell the jury not to award such damages. LoED FuLLBETON. — The ordinary issue is. Whether the death was caused by the one party, to the loss, injury, and damage of the other? But in this case the defenders attempt to alter the issue by an ad- mission. The question then comes to be. If the pursuer proposes to take the usual issue in such actions, can he be forced to alter it by such an admission? I think the pursuer is entitled to reject the admission, and say that he will prove his case. If the defenders say that such a course will injure them, they must shew how it wiU. If such a departure from the usual practice was to be allowed, it would just come to this, that in every case of this sort there should be separate issues as to the liability and damages ; and not only that, but that they be should tried by two separate juries; but I think that would be going too far. Until the party can convince me that they will suffer damage by adopting the ordinary form of issue, I do not think it should be departed from. They are not entitled to teU the jury to put the whole circumstances of the case entirely DIGEST OF DECIDED CASES. 93 out of view, and make an arithmetical calculation as to the value ofMoKToNf.THE the loss. That would be treating this gentleman like a hale of (j^°™^il- goods, which the company can destroy or not at pleasure, and which way Co. can be supplied again in the market. The case of passengers and Railway acoi- goods are quite different. In the case of passengers, the question cannot be limited to a question of pecuniary loss. There is damages for injury to feelings, and solatium. An action for damages for the death of a father would be quite competent at the instance of a son, who succeeded to L. 20,000 a-year by the death. In practice, all kind of circumstances must be taken into account. It is to be re- marked also, that while the defenders admit liability, they do not admit the summons. LoBD MoNORiEFF. — When the point was first stated, I must con- fess I had the same difi&culty as has been expressed by Lords Mac- kenzie and Medwyn, viz., that the same issue should not be sent to the jury where there is an admission of liability, and where there is not, but after the discussion, I feel constrained to agree with your Lordship. It is not correct to say that this is the ordinary form of issue, for there are many cases where the Court have found damages due, and have remitted to a jury to fix the amount. I must say, I thought the second issue might have been enough, because I think that, under it, the pursuer would be entitled to go into his whole case ; but when I find it made a serious question, whether under it the pursuer would be allowed to do so or not, I agree with your Lordship, on the understanding that it wiU be made clear to the jury that the defenders have all along admitted the liability. The Court ' find, in conformity with the opinion of the consulted ' judges, that the issues prepared by the jury clerks shall be the issue ' to try this cause.' 9th Dec. 1846. — Janet M'Intosh or M'Aulat, P'^'''s^''''>-^^^^^^ll^ against Wm. Feenie, Btjist, & Co., Defenders. — 19 Jur.,&Co. p. 81. D. B. M. 9, p. 245. sXTenly 'of machinery- The defenders, coal and iron masters, were in possession of the pit or works, known as the Millfield Colliery, near Airdrie. On 1st August 1 844, Thomas M'Aulay and John Lindsay, two workmen in their employment, were killed by an accident in the pit. The pursuer, the widow of M'Aulay, raised an action of damages against the defenders. The issue was whether 'the ' death of the said Thomas M'Aulay was caused by the in- ' sufl5.ciency of the machinery provided and used by the de- ' fenders, or others acting for them, for the purpose of en- ' abling their workmen to descend into the said pit, or by 94 DIGEST OF DECIDED CASES. M'AuLAY V. ' i]^Q fault, negligence or want of skill of the defenders, or ERNIE, BniST ' & S ' Co. ' others as aforesaid, to the loss, injury, and damage of the liury fromin- , , ifficienoy of purSUer. aohinery. j^ appeared from the evidence, that there was in the main pit at the colliery a wooden partition, dividing it into two parts, the one for the management and separation of the water, the other for the coal and ironst'one ; and that the means of descent on the one side of the partition was a steam engine, while on the other, it was necessary to use a crane for lowering the men. On the evidence adduced at the trial, the jury returned a verdict for the pursuer, assessing damages at £200 to the widow, and £200 to the children. A motion was made for a rule to shew cause why this verdict should not be set aside and a new trial granted. On advising — The Lord Justice-General. — In this case we granted a rule upon the pursuers, to shew cause why a new trial should not be granted. And on reference to the question, whether there ought to be a new- trial, the evidence taken by me at the trial has been fully laid be- fore your Lordships. I had no difficulty at the trial in expounding to the jury the law, appUcable to such a question as the present, viz., that where persons acting by the directions of those having charge of this work, cause an accident Kke this, whether through defective skill, or defective machinery, there is no doubt that their employers are responsible. As to the evidence, the charge deUvered to the jury had no leaning on the one side, or upon the other, and the jury, after considering that evidence, returned a verdict for the pursuers, with £400 of damages. It is that verdict which we are now called upon to set aside, as con- trary to evidence. There is not here any question as to misdirection in point of law, or misconstruction of evidence ; the sole ground of this application, is that the verdict is contrary to evidence. This is a case which T consider as of great importance, not only to these' parties, but to the law, with reference to the principles which are appHcable to a case of this nature. I have gone to the source from which these pruiciples are derived ; I mean the decisions which have been pronounced by the Jury Court, and this Court, from the intro- duction of Jury Trial to the present time. Ifow looking to the principles which have been laid down in the cases from that of Baillie v. Bryson downwards, I feel very clear that, on a motion to set aside this verdict as contrary to evidence, we could not properly grant a new trial, merely because, as jurors, we had taken a different view of its import from that which was taken by the jury. If we did so, we wOuld be usurping fiinctions which the law has not com- mitted to us. I apprehend it to be clear, that to set aside such a ver- DIGEST OF DECIDED CASES. 95 diet, on the grouud that it is contrary to evidence, there must be a M'Auiatu. great preponderance of evidence against the verdict The weight of &^oo.'^' evidence must be against the verdict j must be flagrantly against it. Injury from in- Now in this case, there was evidence on both sides, both as to the Buffloiency of insufficiency of the machinery, and as to the neglect of the men. On the first point, engineers were examined on both sides, and on the other the pursuers' witnesses were subjected to a cross examina- tion on the part of the defenders. Therefore there was evidence of a conflicting nature upon both points laid before the jury ; and ac- cording to the principles laid down in the cases which T have con- sulted, it is obviously the pecuhar province of the jury to weigh and consider the evidence, and to act upon their impressions of it. Now feeling bound to act upon these principles, how are we to dispose of this case 1 The issue is rested on two grounds. The jury have returned, as they were entitled to do, a general finding for the pursuer. Their verdict conveys no information whether they pro- ceeded upon one only of these points or upon both, whether upon the deficiency of the machinery, and also upon the neglect of those in charge of it, or upon only one of these grounds. Their verdict is for the pursuers generally. I cannot say whether they returned it from a combified view of the whole case, or in consideration of only one of these points. But the verdict stands generally for the pur- suers, and assesses the damage at £400. Now I am quite aware that much stress has been laid upon what is assumed by the defenders, the great preponderance of the evidence for the superiority of the machinery. It may be, that if the suffi- ciency of the machinery were the only point at issue, it would be right to investigate on which side the preponderance of evidence lay. But that is not the way in which the case was disposed of. Both branches were under consideration, and it is impossible to say upon which the jury relied. We must take the verdSet as it is, that is, as a general verdict. Now, at the trial, it was mainly contended on the defenders' side, that the whole accident was the act of God, and the Lord Advocate has on their side pressed with great ingenuity the argument, that the whole case of ttie pursuers rests on a mere theory of their own. But I must say that, now that we are compelled to give our impressions of the evidence on this motion, it appears to me that the result is by no means ambiguous. (Here his Lordship referred to his notes of the evidence). This evidence establishes, beyond all controversy, that the machinery was defective, and that it was entrusted to un^ skilful hasnds — ^ta persons not used to the management of it. It is said ;that more evidence might have been, or might still be, adduced to clear up some points iu the defenders' favour ; but if iu any case, parties 'going to a jury choose to starve the case — to leave it ambiguous — they must just take the consequences, and upon the whole I am' not surprised at the conclusion to which the jury have come. I am therefore for refusing this motion. . LoED Mackenzie. — I concur both in the principles which your 96 DIGEST OF DECIDED CASES. M'AuLAY V. Lordship has laid do-vm, and in their application to the present case. ERNIE, CIST jjjg Lordship entered into a detailed examination of the evidence. ajury from in- LoBD FuLLBETON. — I am happy that I have the authority of your ifficiency of Lordship, who tried the case, confirming my opinion, which is against luery. granting a new trial I cannot hold that the verdict was contrary to the evidence, and without going over the details of the evidence which have been considered hy your Lordship, I may say that I am disposed to rest my opinion on a more general ground. ■ One thing of course here does certainly excite surprise, I mean the extreme scantiness of the proof, and the extraordinary backward- ness, on both sides, to call various witnesses who might be naturally supposed able to give information on the matter. There seems to have been employed in putting up the crane, be- sides the two unfortunate sufferers, Neilson, the underground over- seer, Baird the smith, Sime, Allan, and Pride. And when the ac- cident took place, there were present Sime and Allan, who were workiag the crane, Graham, Neilson, and Colquhoun, who, one of the witnesses (Pride) says, came up when " the crane was going off to let down the scaffold," and was the person who tried to stop the motion by thrusting in the wooden spoke. Now of these, only Sime, Pride, and Graham, appear as witnesses. "We have neither AHan, one of the men who was working the crane, nor Colquhoun, NeUson, nor Baird the smith, the last two of whom were present at the put- ting up of the machine. The question, who is to suffer by this manifest failure to call evi- dence, is an important one, but it is one which the jury were entitled to determine for themselves, because it just resolved into the ques- tion, what were the fair inferences or presumptions in fact arising from the evidence which was before them, and as it stood, unqualified by any further explanation which might possibly have been given by the witnesses not called. Now in this point of view, I really see no objection to the conclu- sion come to by the jury, for I cannot adopt the principle, which was evidently assumed in the able argument on the part of the de- fenders, viz., that the verdict must be held to be against evidence, unless the pursuer proved the specific defect of the machine, or spe- cific neglect of the defenders, which occasioned the accident. In the opinions abeady delivered, your Lordships have minutely examined the proof, in order to shew that even on this view the ver- dict could not be said to be contrary to the evidence. But I am disposed to go farther. I cannot admit the principle contended for on the part of the defenders. It appears to me, that in their argument there was overlooked the most important piece of evidence of aU. I mean the fair inference from the fact of the accident itself, as it is proved to have taken place. Taking the evidence of Sime and Pride, what have we but the fact, that after the men got upon the scaffold, and were let down about two turns and a half, it began to revolve, so as to defy the exertions of the two men who were at the handles; that the plummer-block flew up ; the big wheel gave way ; in short, as Pride expresses it, " the crane flung to pieces." Now DIGEST OF DECIDED CASES. 97 what is the fair inference of fact, which any man of ordinary sense M'Aulay ». would draw from the account of the accident ? What, but that the a™^™' •^°'"' machine was in some essential particular defective ? Injury from iu- When a man is ordered by his employer to mount a ladder, and be- sufficiency of fore he has got half way up, the ladder goes to pieces, or when half "'*° °^''^' a dozen of men are put upon a scaffold, and the immediate conse- quence is the fall of the scaffold, what is the fair and natural conclu- sions, but that the one or the other were defective. To say that in such a case, the sufferers, in order to make out the responsibOity of their employers, are bound to prove the specific defect which occasioned the failure, would be in many cases an absolute denial of justice. How is a pursuer to prove this. In this very case, how could the pursuer make out the particular defect of the machine, which those acting for them had no means of examiuing till after the machine was in pieces, and had been patched up and put together again. And no examination of that kind could shew the exact state in which it was when the accident occurred. I think then, that in every analogous case the fair inference of defect in the machine, or neglect, must arise from the very fact of the accident itself Here is an operation, viz., going down a coal pit, which is performed with perfect safety by thousands of persons every morning ; in which accidents of this kind happen, in general, entirely from the defects of the machinery. Is not a jury fairly entitled to hold, as in a question of fact, that such was the case herd. And what is the answer of the defenders ? That it may have arisen from some damnum faiale, some unaccountable failure of the machine, against which no human foresight could guard. This no doubt is possible J but is it to be presumed, contrary to universal experience ? And is it not the business of the party who offers the explanation to prove it, by shewing that aU the ordinary precautions were taken in the erection or construction of the machinery ? and how has that obligation been performed tere ? It is proved that the crane em- ployed, was one which had been for sometime out of use. It was lying in pieces in some shed or outhouse. It was put together by various persons, including Neilson the underground overseer, and Baird the smith, yet neither of these persons were called to shew that it was properly put up, or had been examined by any person qualified to give an opinion on its safety. No examinations of the fractured crane by engineers after the accident could supply that de- ficiency of evidence. The materials, the different pieces of which it was composed, might be all perfectly sound, and the defect may have been, as I think it probably was here, in the putting together, a matter which was absolutely impossible for the pursuers to prove, though it was perfectly easy for the defenders to negative it, by call- ing the parties who superintended the construction. On their fail- ure to do so, I must say, that I as a juryman, should have felt myself fairly entitled to draw the reasonable inference, in fact, from the. nature of the accident as proved, that the proper precautions had been neglected, and that the crane was essentially defective. And on this point of view, I think the verdict is an important one, 6 98 DIGEST OF DECIDED CASES. M'AtiLAY V. which, it would be most dangerous to interfere with. It cannot pos- .^^'^' "'^^sibly he interfered with as against eTidence, except on the assumption rijury from in- that an accident of this kind is to he presumably ascribed to some iiffioienoy of jg^tent and undiscoverable defect, unless the sufferer can prove the " exact cause of the accident, the specific defect of the machinery, or neglect in the management by wliich it was occasioned. I think all the presumption and probabilities lie the other way. And it is impor- tant for the defenders, and other persons in similar circumstances, to know how such cases will probably be dealt with, and I think justly dealt with, by juries, when workmen are to be employed in operations which, though safe enough when proper precautious are taken, are mortally hazardous if those precautions are neglected, it is the duty of the employer to see that all the necessary provisions are made which human foresight can suggest, and if that is done, it can easily be proved by those in attendance. On the other hand, if it be not done, or if the persons to whom it was entrusted are not called, they cannot be surprised that juries will draw, what I think, is the fair and reasonable inference, that a craue or other construction which goes to pieces the instant that it is put up to use, was grossly and essentially defective. I see no reason whatever, therefore, for disturbing the verdict in this case. Lord Jepfhet. — T have great satisfaction in expressing my con- currence id what has fallen from your Lordships, more especially from Lord Fullerton. We are not called upon to say that the jurjr has here decided upon two opposite cases of proof, for truly the case of the defenders rests upon nothing at all. I do not think we are called on to disturb a verdict against a party whose whole defence seems to be this, that he did not know how it happened, and thinks it should be presumed that the accident was an act of God. "What is the evidence usually required of a person who is called to answer for an accident arising from the failure of his machinery i Why, he is expected at least to prove that great care was taken in its erection, and that it was carefully inspected before being used. A party on whom such a responsibility is sought to be fastened, is not entitled to fall back on providence. No doubt the party suing for damages must instruct the accident which is the foundation of his claim ; but when' that is done, the onus lies upon the other to prove that it was not owing to the defective state of the machinery. Verdict sustained. SsEDDONB. 16th December 1848.- — William Sneddon, Pursuer, AB'rndS- against Messrs. Addie, Millar, and Rankine, Defend- TNE. ers. — Jur., vol. xxi., p. 62. T>. B. M. xi, p. 1159. ajury in ooal- it. This was an action of damages, and contained the fol- Jowing as the grounds thereof; — ' That the pursuer was in DIGEST OF DECIDED CASES. 99 ' the employmeut of the defenders as a miner for some time, Sneddon v. ' and down to the date after-mentioned: That on or about lak, aAdliAN- ' the 23d May 1848, as the pursuer was ascending the j^^^' j^ ^gg^i, ' ironstone pit No 1, Grayrigg, near Darngavel Works, be-l*''- ' longing to the defenders, in a cage used by them for raising ' and lowering the men employed by them, he was seriously ' hurt and injured in his body: That the injury so received ■ was caused by the fault, negligence, or want of skill of ' the defenders, or of the persons then in charge of the ' engine, and for whom they are responsible; or by the ' insufficiency of the engine, cage, or machinery, or trap- ' door or entry used by the defenders, or others acting for ' them, in raising and lowering the workmen engaged in ' said pit: That the pursuer had been working during the ' night in the said pit; and about four or five in the ' morning of the 23d of May, or thereabout, having ascended ' the pit in the cage, and about to enter the said trap-door, ' the engine all at once moved on, whereby the pursuer, ' being half out of the said cage, was crushed or squeezed ' against the wood-work and beams forming the frame-work ' at the pit-mouth, and otherwise dreadfully injured: That ' the pursuer was carried home in a lifeless state, and ever ' since has been unable to work, or to earn any subsistence ' for himself and family' The preliminary defence was — That the pursuer must state in precise terms the' specific cause of the alleged injury, and the specific nature of the fault imputed to the defenders, from which fault the injury is said to have arisen. There being no such specification in the summons, it is irrelevant. The engine might have been moved, compatible with freedom from blame on the part of the defenders or their servants, and quite compatible with what was really the cause of the accident — the cul- pable rashness of the pursuer in attempting to get out of the cage before the proper time. An issue was ordered, and the pursuer having proposed one which was not approved of by the Issue Clerks, the Lord Ordinary ordered a conde- scendence of the facts on which the pursuer supported his sum- mons, and answers by the defenders ; adding, in a note; — ' It ' appears to the Lord Ordinary that the pursuer ought to ' state, in his condescendence, whether the injury he met 100 DIGEST OF DECIDED CASES. Ineddon v. ' with arose from defectiye machinery, or want of skill in' tR, aid Ran-' those employed, or from both these causes, for which the iSy in coal- ' OB Russell and Macnee as proprietors of the tenement, with re- Lean i.Bus- 1-11 IT LL, Macnee gard to which the work was done, and employers of the ,n?iiai jiityoftwo other defenders. The general rule is, that the employer oprietor andjg liable for the party employed. Here the employer re- utractors for , , r^ »/ r ./ r ./ jury done by mained in possession of the premises, and the whole em- b-cnXrc°orsployment was within their observation and under their con- trol. It was for them to see that the work was properly carried on, — that the lime was properly enclosed, and that if Russell and Macnee are liable so are Gilfillan and Jackson. Giliillan and Jackson pled, — The whole case against them rests on the simple fact, that they were the principal con- tractors for the work ; but the whole ground of liability put in issue is fault or negligence. To make them liable there must be a special culpability on their part, and there is none .such here. The principle on which a master is liable for his servant is, that it is his fault if the servant does wrong ; he can dismiss the servant at once for disobedience, but a sub- contractor does not stand to his principal in the relation of a servant. Macnee and Russell. — Admitted that a proprietor is not entitled to use his property so as to do harm to others, or expose them to risk. But here, when a party undertook to take the whole work off our hands, it is clear we cannot be liable, unless the fact is brought home to our knowledge as employers, that he, in executing the contract, did so in an unlawful manner. With the sub-contractor we could not interfere. But the lime was not on our premises, nor even on the part of the street which the contractors were en- titled to occupy under the warrant of the Paving Board. We never gave any one authority to lay it down there. If the contractors transgress this authority are we to be liable? There is no evidence to shew how long the lime had been there, suppose it had been deposited a quarter of an hour before the accident, could we have been liable ? The man- date by a proprietor to do certain work, is held a mandate to perform it legally. This case is out of the principle of liability, either on the ground of property, or as between master and servant. The Enghsh cases go on principles which we do not recognise, and Bush v. Steinrnxtn is not now admitted as authority even in England. DIGEST OF DECIDED CASES. 117 Lord Justice-General. — I have examined the cases referred to Richmond ok on both sides, and have come to the conclusion, that no decree for^'I''=*J^''-^y^" the damages here awarded ought to be given against any of the par- & cq. ties except Tait the sub-contractor. Keeping in view that there are Non-liability of no special circumstances whatever to bring Messrs Eussell, Macnee g^t^^tors *f or and Company, the proprietors, or GilfiUan and Jackson, the con- injury done by tractors with them, into any immediate connection or contact with workmen of what unquestionably occasioned the fatal occurrence, that the ojie®^°"°°"'''"^°™ only directed their premises to be repaired, and that the other en- tered on its execution with the full sanction of the municipal authorities, their liability for what must be held as the wrongful and negligent act of Mr. Tait, cannot according to our decisions be main- tained. His Lordship referred to Linwood v. Hnthorn, as the leading case as to the liability of owners of property, and persons to a certain ex- tent acting under them, and which was approved of by the House of Lords. He referred also to the opinion of the Lord Chancellor in Duncan v. Findlater, and of Lord Brougham, indicating that, ac- cording to the law of Scotland, a judgment similar to Bush v. Stein- man, could not have been given in the Scottish Courts. ' But this very case of Bush v. Steinman is that mainly relied on ' in the present case for supporting the claim of liability, both of ' Eussell and Macnee, the proprietors, and Gilfillan and Jackson, the ' contractors. I have perused that case with all due attention, and I ' have certainly arrived at the same conclusions regarding it as that ' of Lord Brougham, and know of no case in which liability has been ' attached to a proprietor for an accident caused by the neghgenee ' not of a contractor with that proprietor for work of his property, nor ' of a sul>contractor, but of a fourth party, employed by the sub- ' contractor to bring materials, and who had negligently laid them ' down on a road where an accident occurred. But locjiing to the ' various subsequent cases, which have followed that of Bv^h v. ' Steinmfm, decided in the Common Pleas at the time of Chief-Jus- ' tice Eyre, above fifty years ago, and seeing that from the very first ' its soundness was questioned, and its doctrine greatly limited in the ' opinion of Chief Justice Abbot (Lord Tenterden), and J. Littledale, ' and that the same hesitation has been followed by other Judges in ' the various later cases reported, all of which 1 have perused, the re- ' suit appears to me, to be that the authority of Bush v. Steinman is ' greatly impaired, and that the true state of the law of England can- ' not be safely held by us as expounded by that solitary decision. I ' shall content myself with quoting only the words of Mr. Baron Parke ' in his judgment in the case oiRapson v. Cubitt, who conturringwith ' Lord Abinger and Barons Alderson and Eolfe, Wius expresses him- ' self where action was brought against contractors for repairing a Club ' House, and who had a sub-contract with a gasfitter, whose negli- > ' gence had caused an explosion, to the injury of the plaintiflF. " The ' rule on this subject was laid down by this Court in the case of ' Quarman v. Burnett, which is directly in point, and cannot be dis- ' tinguished from the present case. The Court there said, ' The lia- ' bility, by virtue of the principle of relation of master and servant, 118 DIGEST OF DECIDED CASES. oHMoifD OR ' must cease when the relation itself ceases to exist, and no other 'Lkanb.Eus- 1 person than the master of such servant can be liable, on the simple Co. ' ground that the servant is the servant of another, and his act the )u-liability of ' act of another, consequently a third person entering into a contract iSraotors^or ' ^^^^ *^^ master, which does not raise the relation of master and iury done by ' servant at all, is not therefore rendered liable, and in the case of vorkmen of ' Milligan V. Wedge, (12 Adol. and Ellis, 737), against the owner of b-contractors < ^ fcuHock, who had employed a licensed drover to drive it from ' Smithfield, and the drover employed a boy, in consequence of whose ' carelessness the bullock injured the plaintiff's property. J. Cole- ' ridge, on the point as to who the person is who did the injury, ' says, ' The true test is to ascertain the relation between the party ' charged and the party actually doing the injury. Unless the re- ' lation of master and servant exist between them, the act of the one ' creates no liability on the other. Apply that here. I make no ' distinction between the licensed drover and the boy ; suppose the ' drover to have committed the injury himself. The thing done is ' the driving. The owner makes his contract with the drover that ' he shall drive the beast, and leaves it under his charge, and then the ' drover does the act. The relation therefore of master and servant ' does not exist between them.' " Now such being what I consider to be the true state of the law of England on this subject, I can find no sufficient authority in it for leading us to adopt a principle of liability which can reach the case either of the contractors or those that employed them, and that therefore the pursuer can claim __her damages only against Tait, the person who truly was the cause of the injury to her husband. LoED M'Kbnzib. — I am of the same opinion. The liability is not alleged to attach to these defenders on account of any fault or culpa on their part. The only ground of liabilityis, that the one is the proprietor of the tenement under repair, and the other the principal contractor. It is said that that makes them liable. I am not able to adopt that view. The general rule of our law is, culpa tenet suos auetores. That rule, carried to the utmost extent, would clear matters altogether ; but I do not carry it that length. There are some cases, no doubt, in which masters are liable for the acts of their servants. That prin- ciple is said to be copied from the Eoman law. It is not very accu- rately copied, for, by the* Roman law, the servants were slaves, and the action on account of injury done by them was the actio noxalis; and if the slave was given up the master was iiee. That principle of liability, however, does exist in our law to a certain extent ; I do not say to what extent, but I am certainly not for extending it beyond servants. But then it is said there is a constructive cidpa in these parties. I must confess, I am unable to see how any blame can attach to a party for hiring a respectable tradesman to repair his house, or in that person contracting with another to do part of that work. I think there is no principle on which to extend the rule as to servants, to contractors. In Linwood's case servants even were not held liable ; and so in the case of Eoad Trustees, where labour- ers alone had done the thing complained of, there being no attempt DIGEST OF DECIDED CASES. 119 to bring home personal blame to the Trustees, the House of Lords Eichmond or assoilzied. On the whole, therefore, I do not think the rule can be sell" kTcnee' extended to a case of this kind. No doubt there are cases where it & Co. seems to have been carried farther j but they were very special cases. Non-Uabihtyof Lord Fullerton. — I am of the same opinion. The question oontmctors for put to the jury was, first, whether the accident in question occurred injury done by through the fault or negligence of the defenders. That l^i^stion ^^""^j^" ^j"^^^ was put as to each of the defenders separately. It is clear that the jury held that the person immediately wrong was Uable in damages, for they find Tait liable ; but then they reserve the question, whether the others were responsible for him. The question, therefore, is, first, whether the said contractor and employer are to be held liable for wrong done by the sub-contractor. Now, it is to be observed that there was nothing hazardous in what was to be done. That is a different case. But there was nothing of that here ; the repairs of this house were not attended with any hazard. Then it is most important that there is no attempt to question the general character of Tait, or of the principal contractor, as persons perfectly qualified for the work they were to do, and of good character. The question, therefore, as I said, just comes to be, whether the proprietor is to b^ liable for the contractor, and for the sub-contractors ; whether he ir called on to warrant the whole operation. Now I do not thinly there is any principle for extending the UabUity so far. The case of servants is different. The master is bound to see that they are acting properly. But where there is' a bona fide employment of a well-qualified contractor, who again employs another, I do not see that such liability can attach. And that would also appear to be the law of England, for the decision in the case of Bush v. Steinman seems to have been nibbled away by subsequent decisions, till nothing of it is left. But, at any rate, I do not think it would be a sound deci- sion here. I cannot think that the employer can be held liable for what was occasioned entirely by the culpa of this third party. The Court decerned against Tait for £50 of damages, and assoil- zied Eussell, M'Nee, and Co., and Gilfillan and Jackson. 8th May 1850. — Greenland against Chaplin. — geeenlahd v. L. J. (N. S.) 19, p. 293. Damagebyool- lision of steam- c!( i^ XT- ^'^- — Whether The plaintiff was on board the steamer bon oi thefauit on pur- Thames,' when a collision took place between that steamer ^"^''''• and the ' Bachelor,' belonging to the defendant. The plain- tiff got his leg broken by the anchor of the vessel falling on it. It was said this occurred by the bad stowage pf the anchor, and not directly by the collision, and that plaintiff was in a pa,rt of the vessel where he ought not to have 120 DIGEST OF DECIDED CASES. Jkeenland f.been. The iury gave £200 damages. A motion was made CHAPIilN. J •/ O O )amagebyooi-for a new trial. ision of steam- SiT^^^ur- Pollock, C. B. — The case went to the jury with evidence on uer. both sides. The jury negatived both propositions, and returned a verdict for plaintiff. The motion for a new trial is, that the law I laid down was correct, but the verdict of the jury wrong; and that therefore there ought to be a new trial, on the ground that the ver- dict is against evidence. I must say that, on the fullest considera- tion that I can give to the evidence itself, I am not prepared to say that I am dissatisfied with the verdict of the jury; there will, there- fore, in this case be no rule granted for a new trial. But I may add that I am of opinion, on consideration, that the law I laid down in this respect was not correct; for I entirely concur with the rest of the Court, that the man who is guilty of a wrong, who thereby produces mischief to another, has no right to say ' part of that mis- ' chief would not have arisen if you had not been yourself guilty of ' some negligence;' and I think that, when the negligence did not in any degree contribute to the immediate cause of the accident, negligence ought not to be set up as an answer to the action ; and certainly I am not aware that, according to any decision that has ever occurred, the jury are to take the consequences, and decide them in proportion according to the negligence of the one or of the other party. The rule is therefore discharged. EiGBY V. 8th May 1850. — RiGBY against Hewit. — L. J. 19.— leckS'driv- Excheq. Rep., p. 291. This was an action of damages by a passenger in an omnibus, who had been thrown off by a eolhsion with an- other omnibus. It was directed against the owner of the omnibus occasioning the injury, although not the one in which the passenger had his place. It appeared that both omnibuses were driving at a furious rate, and in trying to avoid a cart in the way, the wheel of the defendant's omni- bus, which was driven by his servant, came in contact with the protecting step of the omnibus in which the pursuer was seated, causing it to swing towards the kerb-stone; the seat on which plaintiff was sitting was swung against a lamp-post, and threw him off, whereby he was injured. B. EoLPE, in charging the jury, held that plaintiff was not barred from recovering, mereby because the omnibus in which he was seated was driving at a furious rate; and if the jury thought that the colli- DIGEST OF DECIDED CASES. 121 sion took place from the negligence of the defendant's omnibus, so Bigby v. that the other omnibus was not in fault in not endeavouruig to S^^'^ ■ avoid the accident, then the defendant was liable. The jury founding for the plaintifif. Pollock, C. B. — "We are all of opinion that in this case there ought to be no rule, and that there was no fault to be found with the direction of B. Rolfe. The rest of the Court are entirely of opinion that, generally speaking, where an injury arises from the misconduct of another, the party who is injured has a right to re- cover from the injuring party for all the consequences of that injury. On th'fe present occasion, I entirely concur with the Court that there ought to be no rule, and that the direction was perfectly right. I am, however, disposed not quite to acquiesce to the full extent in the propo.sition, that a person is responsible for all the possible con- sequences that may be imagined. I wish to guard against laying down the proposition so universally, but this I am quite clear in, that every person who does a wrong is at least responsible for all the mischievous consequences that may reasonably be expected to re- sult, under ordinary circumstances, from such misconduct. 2 2d May 1850. — Wigmore against Jay.— Excheq. Eep., L. J. (N. S.,) vol. 19, p. 300. Wigmore «. Jay. Master Dot lia- The defender was a builder, employed to build a wing We for injxines '^ •' *? to servant oaus- to the hall of the London University, and ne constructed ed by defective for his servants and workmen a scaffolding for the purpose folding erected of the building. C. R Wigmore was one of the workmen : ^Jten^re'rva^ and it was in the course of their employment, to be on scaffolding at a great height from the ground : that the de- fendant wavS bound to keep the scaffolding of sound and safe materials and poles, and to use due care in erecting it, so as to prevent the defendant's servants from falling. That the defendant negligently used an unsound and de- cayed pole, having notice that the same was unsound and decayed, and the deceased being on the ledger pole, on the scaffolding, in the service of the defendant, the said pole broke, whereby Wigmore was thrown to the ground and killed. Pollock, C. B. — The action is at the instance of the widow of the workman, for herself and children, to recover compensation in re- spect of the husband's death, who was killed by reason of the falling of the scaffold on which he was working. The scaffold was erected under the superintendence of the defendant's foreman, the defendant not being present, and was constructed by men in the employment 122 DIGEST OF DECIDED CASES. riGMORE V. of the defendant, C. E. Wigmore not being one of them. The fall- ster not lia- ^"S '^^ ^^^ scaffold Was Occasioned by the unsoundness of one of the for injuries ledgers or horizontal poles employed in its construction. The de- ^^^^°j'°^" ceased was not in a situation to see the defect in the pole, and it did ;e of soaf- iiot appear that he had seen it. Under these circumstances, it was ling erected contended for the defendant that he was not liable, and Priestly v. int'sCTvauts^"'"^*'' ^^® ^^^^^ '^^^ ^^^^^ Baron was of opinion, that as the de- fendant had not personally interfered in the erecting of the scaffold, and was not in fault, the plaintiff was not entitled to recover, and ordered a verdict for defendant. A new trial was moved for, on the ground of misdirection.* The deceased had nothing to do with the erection of the scaffold, and did not contribute to the accident. He did not see, and was not in a situ- ation to see the defect. He was not a fellow-servant of the party who erected the scaffold — it was the duty of the defendant to keep the scaffolding safe. The Court refused the rule. Pollock, C. B. — The Court could not distinguish the case from the case of Hutchinson, nor from the doctrine laid down in Priestly V. Fowler. The person who had erected the scaffold, or assisted in the erection of it along with other servants, was not- suggested to have been a person deficient in skill, or an improper person to have been employed on the occasion ; and the ground on which the rule was applied for was, that the case of one servant, injured by the negli- gence of another, in the course of their common employment, was not a ground on which the party or his relatives would be entitled to recover damages against the master. We are of opinion, on a very full consideration of the case of Hutchinson, which had been delayed for sometime, with the view to give the subject the fullest considera- tion, that he is not entitled. His Lordship said that the case was upon the record, and capable of being immediately brought to a court of error ; and that the case of Priestly derived addition^, weight from the same circumstance, for it was not a decision of this Court only by the refusal to grant a new trial, but it was the case where the Court arrested the judgment after the .verdict ;. and it does not appear that the parties thought it right, even although a verdict had been obtained, to take it to a court of error. Eule refused. cHissoNji. 22d May 1850. — Hutchinson against The York, New- wcAOTLE, CASTLE, AND BeUWICK RAILWAY COMPANY. Law J. iwaTco!' (^'- S.,) vol. 19. Excheq. Rep., p. 296. Railway Cases, )loyer not yol. 6, p. 580. e for inju- oansed by ; of a fel- servant. This was an action under the stat. 9 and 10 Vict., cap. 93, bi-Qught by the plaintiff as administratrix of her deceased husband, Joseph Hutchison, to recover compensation from DIGEST OF DECIDED CASES. 123 « the Company, on the ground that he had met his death bv^"™""""^"^"- r- ,^ T /. ,T . T The York, reason ot the neghgence of their servants. It appeared Newcastle, that Hutchinson was in the Company's employment, and he, kS,,w1?oT at the request of, and in the discharge of his duty as their ^"P'y^^ °°' servant, was a passenger in their railway, and that the en-ries caused by gines and carriages were under the government of thew-servant!^^' defendants by their servants in their behalf, and that an- other train, belonging to the defendants? and under the charge of their servants, came into collision, in consequence of the negligent, careless, unskilful, and improper manner of conducting said train ; and the plaintiff's husband suffered injury, and died in consequence. The defence was, that the fault being charged against the railway servants, and not against any of the defendants, and as said servants were severally fit and competent per- sons to have the guidance, government, and ' direction of said engines and carriages, as the deceased at the time well knew, no liability attached. Farther, that the alleged ne- gligence and carelessness of the servants were altogether unauthorised by the defendants, and without their know- ledge, sanction, or consent. That the declaration was far- ther bad in substance. It involved the legal principle as to the liability of a ma,ster, when the negligence of one servant causes injury to another servant, upon which Priestly v. Fowler has been the only case decided. Aldbeson, B. — On the record, the question is, whether the defend- ants are liable for the injury occasioned to one of their own servants by a coUision, while he was travelling in one of their carriages in dis- charge of his duty as a servant, in respect of which injury they would undoubtedly have been liable, if the party injured had been a stranger, travelling as a passenger for hire. We think that they are not. This case appears to us to be undistinguishable in principle from that of Priestly v. Fowler. That case was fully considered, and the Court, after verdict for the plaintiff, arrested the judgment, on the ground that a master is not in general liable to one servant for damage re- sulting from the negligence of another ; and some of the inconve- niences, not to say absurdities, which would result from a contrary doctrine were there pointed out. The principle on which a master is in general liable for accidents resulting from the negligence or un- skilfulness of his servant is, that the act of his servant is in truth his own act. His Lordship then explained, that the principle did not apply when the servant is himself injured by his own unskilfulness or negligence. He proceeded to explain the difficulties as applicable 124 DIGEST OK DECIDKI) CASES. jiimsoN ». to the case of several servants employed by tlio saiuo iiiusto)', caused vcASTijc ^y ''li^ negligence of any of thuui, and stated, that tli(! CJourt wuro of Bekwic'k ophiion, that in general the master is not responsible, luid proceeds ; .WAY Oo. ' Suppose that, by the unskilfulness of A. H., the other servant is in- °^or ?n-' jur^d while they are jointly engaged in tin; same service, there we s caused ' think B. has no cliiiiii against the master ; tlicy have, both (ingaged ,e fault of I jjj g^ common service, the duties of which impose a certain risk upon ' each of them, and in case of neglif,'()iice on tlii! part of the other, the ' party injured knows that the neglig(!U(;(! is that of his fellow-sdrvaut ' and not of his master. Ho know when he engaged in the servicer ' that ho was exposed to the risk of injuty, not only from his own ' want of skill or care, but also from the want of it on the jiart of ' his own fellow-servant also, and he must be supposed to have ' contracted on the terms that, as betwetni himself luid master, he ' would run that risk. Now, applying these priiKiijilos to the pr()H(!nl, ' case, it follows that the plaintiff has no title to recove.r. llutcliiii- ' son, the deceased, in the discharge of his duty as one of the ser- ' vants of the dolbndants, had put himself into one of the railway ' carriages, under the guidance of others of their servants, and by ' the neglect of those other servants, while they were eiif,'at,'ed to- ' gather with him in one common service, the accident happciii'(l. ' This was a risk which lie must be taken to liavo agreed to run when ' he entered the defeudunts' service, and iWr the consequ(!nces of ' which, therefore, they are not nisponsible. 'J'lie jiursuer, no doubt, • states that the accident happened by the neghd^t ol' the servanls ' who were managing the other train ; but it was argu(!(l that/, ' although the principle applied to the servants mannKii'K the train ' in which Hutchinson was, still the principle wonld not apply, ' so as to exempt the defendants from liability for the acts of those ' who, though equally with Hutchinson servants of tlie defendants, ' were not, at the time of the accident, engaged in any common service ' with him.' But we do not think there is any ri'al distinction between the two cases. The principle is, that a servant, when he (!ngagos to serve a master, undertakes, as l)etw(;c!r] himself and the niastei', to run all the ordinary risks of the SM-vm:, luid this includes the risk of negligence upon the part of a fellow-servant when he is acting in the ordinary discharge of his duty as servant to him who is the com- mon master of Ijoth. The death of Iluteiiinson ujipeiirs, in those pleadings, to have happened while he was acting in the discharge of his duty to the defendants as his niasler, and to have been thi; rcisult of carelessness on the part of one or more, other s(!rvij,nt or servants of the same master while engaged in their service ; and wlicitlier the death happened from mismanagement of one train or the other, or of both, does not alfect the principle — in any case it arose from carelessness or want ofskill, the risk of which thedecea8(!dhud,asbetweenhimselfand the defendant, agreed to run. It may, however, be piopei, with refer- ence to this point, to add, that we do not think that a master is exempt from responsibility to his si-ivant for an injury occasioned to hinj l)y the act of another servant, when the scsrvant injured wuh not, at the time of the injury, acting in the service of his master. In sucji a DIGEST OF DECIDED CASES. 125 CEise the servant injured is substantially a stranger, and entitled to all Hutchinson v tlie privileges he would have had if he had not been a servant. It Newcastle WHS contended that the plea in this case is bad on special demurrer, and Bekwick as being but an argumentative denial of the cause of action stated in ^^V"'^'^ ^°- the declaration, but we think the objection is unfounded. Though u^ble for inju- we have said that a master is not responsible generally to one servant ries caused by for any injury caused to him by the negligence of a fellow-servant*® ^]^'^^*j^^ while acting in one common service, yet this must be taken with the qualification, that the master shall have taken care not to expose his servant to unreasonable risk. The servant, when he engages to run the risks of his service, including those arising from the negligence of fellow-servants, has a right to understand that the master has taken reasonable care to protect him from such risks, by associating him only with persons of ordinary skill and care ; and the real object of the plea in this case is to shew that the defendants had discharged a duty, the omission to discharge which might have made them respon- sible to the deceased. The plea, therefore, is not open to the objec- tion. For these reasons, we are of opinion that the plaintiff has shevm no ground of action. Judgment for defendant. 1st July 1851. — Adam Pateeson, Pursuer, against Monk- Patekson «. LAND Iron and Steel Co., Defenders. — ^D. 13, p. 1270, iron and 23 Jur., p. 598. ' CoXuSSi- dent. — Irrele- This vp^as an action of damages for injury sustained l^yj^hf^t*"'"^™ the pursuer, while engaged as a collier in the employment master, of the defenders. It appeared from the statements in the summons, that the pursuer was in the act of being drawn up the shaft, and while standing in it at the bottom, along with three other men, the engineman had been altering the length of the windlass-rope at the mouth of the other divi- sion of the shaft without the knowledge of the persons at the bottom, and that instead, as it was alleged, of adopting the usual mode of altering it by ' packing' or ' unpacking' the 'pirn' or cylinder round which the rope is coiled, in order to lessen or increase its circumference, he, from huny or carelessness, proceeded to make an alteration by attach- ing a chain of different length from that then in use to the end of the windlass-rope — and that while so employed he suffered a bolt to fall into the shaft, which glanced from the side, and in consequence of the incompleteness of the partition, went down the division of the shaft, at the bot- tom of which the pursuer was standing, and struck and 126 DIGEST OF DECIDED CASES, Paterson v. severely injured him. The pursuer alleged, that these Iron and events took place through the negligence, fault, and culpa- oaiS acci- ^^^J o^ ^^^ defenders, and their underground manager, in mt— irreie- keeping the pit in an unfinished state, and the partitions a,biiity on not completed after their danger had been pointed out, — '*^ ^' and not having the cage properly covered in, and the care- lessly altering the windlass-rope in an unusual and danger- ous manner. The defenders pled, that the pursuer could not recover for an injury sustained through the fault or negli- gence of a feUow-workman, and in so far as it proceeded on that ground it was untenable. The following issue was proposed by the pursuer — ' Whether the said injuries were ' caused in consequence of the imperfect condition of the ' shafts of the said pit, or of the faulty construction or in- ' sufficiency of the cage or other machinery provided and ' used by the defenders, or others acting for them, for the ' purpose of enabling their workmen to descend and ascend ' the said shaft, or by the fault, negligence, or want of skill ' of the defenders, or others acting for them, in the use or ' management of the said machinery, to the loss, injury, ' and damage of the pursuer.' The Lord Ordinary reported the case. LoHD Justice-Clerk. — The question raised, is one of great im- portance, but I don't think we axe called on to decide it, for it appears to me that no relevant ground of action is stated in the summons. The hability of the defenders, as I understand the summons, is rested on the fault or negligence of the defenders, or their servants, on three points — 1st, In not having the cage covered, so as to pre- vent injury to persons therein from anything falling down the shaft ; but I am sure the greater number of coal-pits in Scotland have no such covering to their cages, and it is impossible to make the defen- ders liable on that ground. The same may be said on the second point, namely, the not completing the partition wall to the top, and so in the course of discussion, both these grounds of liability were given up. Then the case just comes to this ; that a bolt was dropped down the shaft, by which the pursuer was injured. But, on looMng at the statement on that point in the summons, it is impossible to say it is a statement of anything but an accident ; no relevant ground of babihty is set forth. The summons is not expressed in such terms as can entitle a court of law to interfere in any way ; for the whole statement is that of an accident, from which no legal lia- bility arises against the defenders. Lords Cookburn and Murray concurred. Defenders assoilzied with expenses. DIGEST OF DECIDED CASES. * 127 1851. — Knight against Fox and Another. — ^yoT&c.' 5 Exch. Rep. 721. Master not liable for fault of oonti-aotor. The London and Blackwall Railway Company, had en- tered into a contract with Brassey, to complete certain works on their line. Brassey sub-let part of this contract, being the erection of a tubular bridge over a public highway, to the defendants, who canied on business at Birmingham, but employed Cochrane at a yearly salary of £250, to man- age their general business in London. Tlie defendants en- tered into a distinct contract with Cochrane, to supply the scaffolding for the bridge for the specific sum of £40 ; the defendants finding the rest of the materials, and also the lights to warn passengers. During the construction, one of the poles of the scaffolding rested on the pavement of the highway, and projected, while there was only one light placed at night to g-uide passengers. Owing to the defective light, the plaintiff one night stumbled over the projecting pole, and broke his leg, and immediately after, the defendants added more lights. On this state of facts the defendants objected that they were not liable, but that Cochrane, if any, was so. Pollock, G. B., at the trial told the jury, they would not be justified in finding a verdict for the plaintiff, and directed a non-suit, but with leave to move the Court to set it aside if they chose. On moving accordingly, Knowles, Q. C, for plaintiff, contended, that as Cochrane was the general ser- vant of the defendants, the agreement with respect to the £40, was like advancing him that sum for the purpose of some ipachine required for the works. Suppose a master were to contract with his servant, that the latter should purchase his own tools, and the servants carelessly placed them in a dangerous position, whereby injury was caused to a passer-by, the master would be liable. Besides, the fact of defendants placing additional lights after the accident, was some proof of their liability. — Burgess v. Gray, 1 Com. Bench Rep. 578. Held by the Court, the defendants were not liable. Parke, J. said — ' In the management of the erec- ' tion and fitting up of the scaffold, Cochrane was not the * defendants' servant. It is like the case of a gentleman ' who enters into a particular and distinct contract with his 128 DIGEST OF DECIDED CASES. Knight v. ' servant to Supply him with job horses. It may be too Mastornot ' much even to say that Cochrane was defendants' servant rf contractor.' ' ""^ ^^J point of view, for he acted as a contractor or sur- ' veyor for them at a yearly salary, which he received in ' lieu of payment for each separate piece of work. "lis pre- ' cisely the same as if he had been a third" party.' ^MaZox."' Seymour against Maddox. — 20 Law J. (Q. B.) 273. Accident in tiling througli stage traps. Plaintiff, an actress, had been engaged to sing in an opera, and while passing from the stage in the usual way to the drawing-room after the performance, fell through a trap- door that was open, and was injured. She sued the pro- prietor, alleging it was his duty to have kept such holes sufficiently lighted and guarded, which duty he denied. The Court gave judgment for defendant. Coleridge, J. — The real question is, whether the duty arises from the relation in which the parties stood. It seems to me, if we were to hold that it did, the consequence would be, that whenever the same relation existed we would have to infer duties that had never yet been held to exist. The servant is not bound to enter the mas- ter's service, but if he does, and he finds things in a certaui state, he must take the consequence, if any, that may occur owing to such a state of things. Overton ». 13th January 1852. — Overton against Freeman. — rWp^on- 21 Law J. (C. P.) 52. tractor not lusedbywork- This was an action of damages by plaintiff, who had j^JJr^t^y™^" broken his leg by stumbling on paving stones left negli- gently on the street. Defendant had contracted with a sub-contractor to lay down the pavement, and the latter was doing so under the direction of the engineer and sur- veyor of certain Commissioners, who had, in the first in- stance, contracted with the defendant for the work. The sub-contractor himself paid the men who actually laid down the stones, which caused the injury. No lamp having been placed near the stones, the plaintiff, when passing DIGEST OF DECIDED CASES. 129 along the street in a dark night, stumbled and hurt his leg, Overton v. which had to be amputated. . Prinoipai oon- , Defendant contended he was not liable,.but the plaintiff bie° for Tnjuiy contended that defendant was liable, because the act was a^^^^^f^^^^g"*^! public nuisance. The Court held defendant was not liable. <=™traotpj-. Ceesswbll, J. — The defendant not having exercised any personal interference in the work, not having sanctioned the placing of the stones, but only having contracted for a lawful thing, cannot be made liable for the unlawful act of the person with whom he contracted. The defendant did not contract that the sub-contractor should lay one stone upon another, so as to create a public nuisance. Paving the street was not a public nuisance. If he had contracted that a pubHc nuisance should be committed, it would be another thing. 21st February 1852. — Blake against Midland Eailway blake».Mid- COMPANY.— 21 Law J., Q. B., 233. .lai,d Railway Excessive da- Plaintiff's husband had been killed byanaccidfent on the law of assyth- railway, caused by the negligence of the defendants. The^™„ Engiandi jury awarded excessive damages to the widow, who was plaintiff, giving her £4000, and a new trial was moved for on this ground, and also because the Judge had not directed the jury how to estimate the damages. Plaintiff contended that a certain sum by way of solatium was authorised by Lord Campbell's Act (9 and 1 Vict. c. 9 3), and cited cases from Scotch reports, to shew tha;t that principle prevailed in Scotland. The Court granted a new trial, per Coleridge, J. — • The Scotch law of assythment is wholly alien to the ' law of England. Lord Campbell's Act may have been ' suggested by that law, but did not introduce it here in its ' full latitude. The Judge at the trial ought more expUcitly ' to have told the jury, that in assessing damages they could ' not take into consideration the mental suffering of the ' plaintiff. The damages awarded certainly exceeded any ' loss sustained by her, admitting/ of a pecuniary estimate, ' and must be considered as excessive.' 130 DIGEST OF DECIDED CASES. neuTon « ^^^^ January 185 2. — Rankin or Neilson, Pursuer, against Wm. Dixon. William Dixon, Defender. — Jurist, voL 24, p. 184, lamages for t\ i A A an ijuries re- U. 14, p. 420. siTed at a ooal it — imperfect i . i i laohinery and The pursuer, Ann Rankin or Neilson, claimed damages iifow^serrantsfro^i ^^^ defender, as proprietor of a coal-pit, for the death of her husband, Thomas Neilson, who was a workman in the employment of the defender. The action had originally been brought before the Sheriff- Com-t of Glasgow, and judg- ment was given for the pursuer. The defender brought an advocation of the judgment, and pled that the death had been occasioned partly by the negligence of the deceased, and partly by the negligence of his fellow-workmen, and contended that a master was not Uable to a workman for injury caused by the neghgence of his fellow-workmen — that being a risk undertaken by the workman in his contract of employment. Parties were at variance as to the facts, and a proof had been taken in the case before the Sheriff. The following interlocutor of the Lord Ordinary (Colonsay), brings out the nature of the case : — ' Finds, as matter of fact — 1 . ' That on or about the 5th April 1849, on the occasion ' when the deceased Thomas Neilson, the husband of the ' pursuer, lost his hfe, he was, upon the invitation or with ' the sanction of those for whom the defender is responsible, ' occupied in the business of the defender, in working along ' with other men a fixed machine or engine, called a ' crab,' ' placed near the mouth of a coal-pit, called the ' Big Bank " Pit,' belonging to the defender : 2. That the said machine ' was of the nature of a vertical circle made to revolve by ' the application of manual power to horizontal spokes; and ' was used for the purpose of raising and lowering with a ' rope and pulley, weights from and into the said coal-pit, ' but was not provided with any working teeth or checks ' to prevent a reverse movement in the event of the force ' being withdrawn or relaxed while the weight was still in ' suspension. 3. That on the occasion in question the crab ' was used for the purpose of raising the rods of the pumps ' in the pit to a certain height, and keeping them suspended ' while certain operations were in the course of being per- ' formed on the pumps by changing the buckets — that the DIGEST OF DECIDED CASES. 131 ' said rods were of great weight, and the united continued Bankdj or ,/. rt ij» -li-j.! 1 Neilson v. lorce 01 a number oi men was required to raise them, and wm. Dixon. * keep them suspended — that in consequence of the loss of ?'^^^|g®^j,gf"' 'a bolt and nut, the weight was kept suspended untilo?"edatacoal ' measures were taken by sending to the smithy to get the machinery and ' bolt and nut supplied, which occupied a considerable time^^^fg^^"'^ ' — ^and thus the weight was kept suspended for a great ' length of time. 4. That in the meantime, and in order - that the men might be relieved for a time- from sustaining ' the weight, and that any reverse movement of the crab ' might be at the same time prevented, one of the men en- ' gaged in working the crab, tied it by one of the spokes ' with a rope, which then, and usually, was attached to one ' of the upright standards of the crab ; and several of the ' men thereupon left the crab and removed to a short dis- ' tance, but the deceased and two others remained at the ' crab. 5. That the three men who remained at the crab, ' could not unaided have sustained the weight, and that the ' rope with which the crab was tied, was old and slender, ' unsuitable for that purpose, and insufficient to sustain the ' strain, and that it gave way, and the crab, impelled by the ' great weight of the pump rods, revolved with great force ' and rapidity, whereby the deceased was thrown down and ' his legs were broken, and he was otherwise injured, and ' soon thereafter died of the injuries so received. 6. That ' at the time when the crab was tied, and when some of ' the men released themselves from the crab, and when the ' injury occurred, William Robertson, the pit-head man who ' had been in charge, had left the spot, and had gone to the ' smithy about the bolt, and was absent for a considerable ' time, and the overseer, James GaUoway, who had desired ' Robertson to go to the smithy, was in the engine-house at ' a short distance, warming and drying himself, and there ' was no person on the spot having authority or taking ' charge of the operation of working the crab; or of the ' party of men engaged in that operation. 7. That the ' practice of tying the crab, with the said unsuitable rope, * when weights were suspended, instead of the men continu- ' ing to sustain the weight by their own power, had pre- ' vailed at the Big Bank Pit for a considerable time, and to ' a considerable extent, and the propensity of the men to do 132 DIGEST OF DECIDED CASES. N^SsT ' ^^' ^^ known to the pit-head man, and had been ra- Wm. DrxoN. ' peatedly evinced in his presence, and was that day evinced ijuries re- ' in his presence, unchecked by him, and waa also known to it^im^f^'' ^^^ overseer, and the insufficiency for that purpose of the iachiiieryand< rope attached to the upright shaft of the crab and the siiow-servants ' danger of the practice were also known t with that disregard for the safety of workmen which seems eminent- ly to characterize all the machinery management and operations in a great number of coal and other pits, this crab has no teeth or checks to prevent a reverse movement, and that is said to be a common de- fect. I do not say that in tliis case I hold the master hable in da- mages, on account of the great defect in the machinery of the crab. iJut this case wiU make the importance prominently known of having a proper check to prevent the same flying round with the frightful violence here caused by the weight of the rods, and if after such oc- currences, coal masters wiU go on with such defective machinery, whe- ther from carelessness in themselves and their managers, or from a desire to save a little expense, I shall certainly in future leave any such point to the jury if a case is tried before me, as carelessness and det'et't for which the master is at once hable. But in the pre- sent case there is no doubt, that the risk of the machine revolving with great rapidity, and the spokes thus flying round in a most dan- gerous manner, w;is palpable and most notorious, so when any weight had to be suspended for a considerable time, and that risk only pre- vented by gi-eat care and caution, the master or his manager on the spot, ought to have looked to the safety of the men, whose lives might have been endangered by the slightest relaxation of the strength required to sustain the weight in its position. The men employed on such an occasion as we see here, are any of the work- men who can be got, or any one casually present It is of no avail to s;iy that the men knew the risk, and ought to have held on, or that they have been told to hold on. This was just the defence in the case'of Sword. Tlie recklessness of danger on the part of the men is a result of the trade in which the master emploTO them, and he is bound in all such eases to liave superintendence which will ex- 134 DIGEST OF DECIDED CASES. Eankin or elude such risks as occurred here, especially, and peculiarly when Wm. Dixon. ^^ machinery is defective, in not having the checks which exclude lamages for any reasonahle chance of danger. The occasion called for most strict ijunea reoeiy- ^nj^ vigilant attention, and it was not given. Even if Galloway went -imperfect away before the rope was tied, and although it was natural he should lachinery— desire to warm himself, yet the fact is, he did not look after this most f'f eSow-fe ""^ critical and dangerous state of the machinery at aU. That the rope mts. was utterly unsuitable and insufficient for this use, the reclaimer him- self founds on. Assuming therefore that it is not necessary to decide that GaUoway himself tied the spoke with the rope, stiU in an opera- tion of great risk, carried on for the master's interest, and which re- quired to be gone through without delay, in order to prevent loss to the master, and at a most critical stage of that operation attended with the greatest danger, and protracted for the master's interest to a most unusual length of time, there was a complete want of care, superintendence, and control over the actions of the men, aU au- thority and inspection being withdrawn, so that the very risk oc- curred which often took place in circumstances of less danger, and which the slightest attention to the safety of the men would have prevented, such inspection and control being withdrawn too over a body of men accidentally brought together, some strangers to each other, and to those in charge, and on whom therefore it was extremely necessary that most vigilant inspection, should have been preserved. By this want of control the man ia question remaining at the spoke was killed. I am of opinion that the master is clearly liable in the circumstances for this inattention and want of control and inspection in the course of a hazardous operation, protracted in this instance for a considerable and an unusual length of time, whereby the necessity for very great and vigilant inspection was essentially required. But then it is said, entirely on the force of certain decisions and opinions of the Courts of England, that the master is not responsible' as I understand in any circumstances to those employed by him, for any inj uries caused by the carelessness, inattention, and recklessness of other servants in his employment. That there are many cases in which the mas- ter will not be liable for the conduct and acts of his servants, whe- ther the injury is done to a third party, or to another servant, as being at the time in his master's service, is quite true, but such ex- ceptions — for such they are — in the law of Scotland, depend on the state of the facts and the nature of the misconduct iu the particular case. These exceptions will cover some of the extreme cases put in the English opinions, while others of these cases seem to apply to the master's liability to third parties. I observe that the English, judges state that by the principles of the law iu that country, the servant by reason of the contract, undertakes to run all risks while in his master's service — of allinjuries caused by the recklessness, wrongous acts, and carelessness of his fellow-servants, for the dangers from such are risks incident to the labour he undertakes in that particular service, as for instance, the servant of a railway company by his con- tract of service, undertakes to run the risk of all the dangers caused by other servants of his employers, such dangers being a risk incident DIGEST OF DECIDED CASES. 135 to the service he undertakes ; of course this doctrine implies that all Eamkin or along, and as to this most common contract, this had from the be- wm.^Dixok. ginning of time, been the risk undertaken by the servant by his con- Damages for tract of service. I am glad that our law is different, for I should '^i""^^ '^^'=^'X' think that if you relieve the railway company from all obligations for _imp*rieot , injury caused to any of their servants through the carelessness and machinery- neglect of any of their numerous servants, you incur the hazard of *"jgj"®^|®^''® their'being as regardless of the safety of the public from the conduct vants. of their servants, as the law tells them they may be as to the safety of their servants. By the law of Scotland, the master's primary obligation, in every contract of service in which workmen a,re employed in a hazardous and dangerous occupation for his interest and profit, is to provide for and attend to the safety of the men. That is his first and binding obligation. I should say paramount, even to that of paying for their labour. This objection includes the duty of furnishing good and sufficient machinery and apparatus to enable them with safety to their lives to perform the work which they are employed in for his ■ profit, and to keep the same in reasonable and good condition. In his obligation is equally included, as he cannot do everything him- self, the duty to have all acts by others whom he employs done pro- perly and caiefally in order to avoid risk. The obligation to provide for the safety of the lives of Ms servants by fit machinery is not greater or more inherent in the contract than the obligation to pro- vide for their safety, from the acts done by others whom he also em- ploys. The other servants are employed by him to do acts which, of course, he cannot do himself, but they are acting for him, and in- stead of himseK, as his hands. For their careful and cautious atten- tion to duty, for their want of vigilance, and for their neglect of precautions by which danger to life may be caused, he is just as much responsible as for such misconduct on his own part if he was actually working, or present, and this particularly holds as to the persons he entrusts with the direction and control over any of his workmen, and who represent him in such a matter. The servant then in the con- tract of service in Scotland, undertakes no risk from the dangers caused by other workmen, from want of care, attention, prudence, and skill, which the attention and presence of the master or others acting for him might have prevented. His master is bound to him in obligations, which are to protect him from such dangers. The prin- ciple of the contract in England being different, of course different results follow. Of course there arise a number of cases in the vari- ous trades of modern society, in which the acts of the servants may be of such a kind that although not criminal, they do not yet involve the master in liability, and in such cases the law was clearly admitted on all hands, although its application was matter of nicety. The case of Sword V. Cameron, February 13, 1839, is a case which eminently and very strongly brings out the doctrine of the law of Scotland. It is in vain to attempt to disturb it in this Court, and having heard what is to be advanced, I have only to say that I shall not regard the point as again open for argument. It seems to me to be clear that this plea is quite inconsistent with the settled law, that a master is liable 136 DIGEST OP DECIDED CASES. Bakkin or to his servant for injuries caused by culpable negligence and inatten- Vn. DixoK. *^"^ °^ ^^^ other workmen, and the want of control over their men. images for LoKD Medwyn. — I cannot help entertaining a doubt of the con- juxiesreoeiv-Qingjojig jjj point of fact deduced by the Lord Ordinary. The 9th imperfect ^^^ ■'■O^'li articles of the sTimmons, attribute the tying of the crab by ichinery— the rope to Galloway, and in the face of representations of its insuffi- feU*w^^''"°^ ciency by others, as well as of proof of its insufficiency at the time; nts. I think it proved by Galloway, Armstrong, and Eobertson, that Gal- loway gave no other orders, but for the men to hold on, which implied that they were not to tie the crab. N^w when Neilson received his- death blow, was he employed in his master's service, doing his work, so as to make him answerable for the injury his family have sustained by his death ? I have great doubt about this. He was acting con- trary to express orders, and why did he remain by the crab not hold- ing on, but merely leaning lounging in it, instead of running away from it, remaining subject to injury if the rope gave way. He should have removed from the danger which he occasioned by disobedience of express orders. He had no occasion to remain where he did, for the benefit of his master. 1 say nothing as to English cases, or the case of Sword. Lord Cockbuen.— Agreed with the Sheriffs and the Lord Ordi- nary in their view of the facts. The result is that the pursuer's hus- band lost his life through blameable negligence on the part of those for whom the defender is liable, ' But it has been maintained, and this is the only singularity in this case, that, as the deceased was himself a workman at this colliery, and was injured through the culpable misconduct of other workmen there, the defender, who em- ployed them all, is not liable in damages. This plea rests solely on the authority of two or three very recent decisions of English Courts, and these decisions do certainly seem to determine that in England where a person is injured by the culpable negligence of a servant, that ser- vant's master is liable in reparation, provided the injured person was bierely one of the public; but that he is not so responsible if the person injured happened to be a fellow-workman of the delinquent servant. It is said, as an illustration of this, that if a coachman kills a stranger by improper driving, the employer of the coachman is liable, but that he is not liable if the coachman only kill the foot- man. If this be the law of England, I speak of it with aU due res- pect. But it most certainly is not the law of Scotland, Lord Murray. — I have considered this case with great anxiety and have at different times been impressed with different views, both of the evidence and of the law. I am now of opinion that we must en- tirely discard the doctrine from the English law, on which the ad- vocator has relied. I hold it to be clear in our law, that when any one employs workmen in a manufactory or other operation attended with danger to life, he must take every precaution to make the em- ployment as safe to the workman as possible. He is responsible for the machinery being safe, and for the superintendence and vigilance on the part of other workmen to make it so. I thi|^k it made out by the evidence that the requisite superintendence was not given here. I am therefor^ for adhering. DIGEST OF DECIDED CASES. 137 3d March 1852-1855. — Mrs. Margaret Beydon or Mar- BRYDONor SHALL and Others, Pursuer, against the Omoa and Cle- ». Omoa and' LAND Iron and Coal Co., and Eobert Stewart, i)e/eTO-&o^oA^Sd ders. — Jur. 24, p. 298. D. 14, p. 596. H. of L., Jur. ^^o^^^^t Stew- ^7, p. 321. Damages for injury in a. coal pit, — ^whether James Marshall, a miner, in the employment of the Omoa*« "•i'?^'' '«'*' and Cleland Iron and Coal Company, and Robert Stewart, ing the work of the only individual partner ; or otherwise, of the said Ro-Is to"aul?'iia- bert Stewart as proprietor, and in the occupation of the''"'*y- Cleland ColKery, and the Omoa Ironworks, was killed on the morning of 11th January 1849 ; and his widow and children pursued for damages, averring that he, while in the performance of his duty as a miner in the employment of the defenders or defender in the Bellside pit, and while ascending the ^hank in a cage, provided for the use of the miners, was struck on the head by a lump of coal, ironstone, or other hard substance falling on him from above, in con- sequence of which he fell from the said cage to the bottom of the said pit, and shortly afterwards died from the injuries received. The shank was not provided with a cover, so as to protect those ascending and descending in it from being- injured by anything falling from above. The under part of the pit or shank is composed of solid rock, but the upper part, to the extent of eight fathoms from the top thereotj was composed of soft or loose metals, and the upper part had been lined or defended with wood, so as to prevent the soft or loose metals from coming out and falling down the shank ; and it was alleged that, at and previous to Mar- shall's death, the lining of the upper part of the pit was in a rotten, or at least an unsafe and insufficient state, and that the substance which killed Marshall fell in consequence. The ground of liability, by reason of the cage not being covered, was abandoned, in consequence of the decision in the case of Paterson, (1st July 1 851,) and on the second branch, the fol- lowing issue for trial was adjusted : — ' Whether the death of ' James Marshall, miner at BeUside, while working in a coal ' pit belonging to and in the occupation of the defender, ' was occasioned by injuries arising from the shaft of the ' said pit being in an unsafe state, from causes for which the 138 DIGEST OF DECIDED OASES. , [ARSHALL°&c ' s to cause lia- including the underground roads and works, in a proper condition, and also to draw the minerals and other mate- rials which required to be taken to the surface, from the places at which they were wrought to the pit bottom, and put them in the ascending hutches. That on the occasion of the deceased falling down the pit, he was in the act of leaving his work when he had no right to do so. The de- fender, from all he can learn, believes that the death of James Marshall is attributable either to his own carelessness, or was the result of an inevitable accident. It appeared from the evidence, that the miners at the pit had, after going down, on the morning of the 11 th of Ja- nuary 1849, held a meeting, at which some alleged griev- ances were discussed, and it was resolved that all the miners should that day stop work, in order to make the complaint tell stronger ; and the miners accordingly proceeded to leave the pit, and Marshall, one of the number, in doing so, was killed in manner above stated. At the trial, the presiding judge charged the jury, (Isf), That if they were satisfied that the men left the mine without working, from no apprehen- sion of danger, but of their own accord, for a purpose of their own, against their employer's interest, and in a body, to make some complaint tell more effectually with the ma- nager or the defender, and not in the ordinary course of their occupation, then, in point of law, the defender is not answerable for a casualty caused by a single stone falling at that particular moment, when the men were so leaving, and that the jury must, if so satisfied in point of fact, find for the defender, and state their ground for doing so, even if they should be satisfied that the death was caused by that stone or other substance falling on the deceased, through 5ome insufficiency in the planking. (2cZ), Wliether the DIGEST OF DECIDED CASES. 139 death was caused in the manner contended for by the pur-,^^"^"™°i J r Marshall, &a. suers, in consequence of the shaft being in an unsafe and »• Omoa and insufficient state; and if they think so, they will so find, &ooALCo.and and find damages due, as the defender, in point of law, jg Robert Stew- responsible for the death, if so caused, and if not relieved Pa™ag.es for on the first ground. And (Sd), If the jury think the death pit,— whether was caused by the shaft being in an unsafe and insufficient *j®ji™y^'e™ state, then the iury will farther consider, and find whether iPS**'«^°''^°* . . . «„ \ ™e master, so John Craig was, m point of fact, properly a contractor, or as to cause iia- truly a servant, paid for his labour, in regard to the hning ' ^" of the shank in a particular manner, convenient for his master. And the judge reserved to the parties right to move the Court to enter up the verdict for them on the ground of the charge being wrong in point of law, or any part of it as - being a question of law for the Court, notwithstanding the verdict of the jury. The following verdict was returned : — ' On the first point they find for the defender, and that the ' men had no proper cause of leaving their work. On the ' second point, they find that the pit was not in a safe and ' sufficient state, and that the death arose from injuries ' thereby caused ; and in terms of the joint minute lodged ' for the parties, they assess damages at L.150, being ' LlOO for the widow, and L.50 for the children, of the ' deceased James Marshall. On the third point, they find ■ that Craig was not a proper contractor, but properly a ■ servant of the defender.' The pursuers now moved the Coui-t to enter the verdict for them, and maintained that the first direction was wrong in point of law. The deceased" was not violating any rule of the work, although he ascended for a purpose of his own. Suppose it was to complain of a grievance — ^it might be that it was a grievance against which he was entitled to redress. The verdict, though it found that the cause for ' which he left his work was not a proper cause, did not find that it was an unlawful cause. The defender, on the other hand, maintained the correctness of the direction. Lord Justice-Clerk. — None of the cases adverted to appear^ to me to advance the pursuer's argument. 1 . All but the case of Whiie- law were cases where strangers were injured, and where no question arose out of the relation of employer and servant : hence they have 140 DIGEST OF DECIDED CASES. Bktdon or no application. 2. There was no fault proved on the part of the in- V. Omoa and" jiired party, on which the defender could found any defence. Sup- Ilelahd Ikon pose that, in CadelTs case, the man had been coming home drunk, 'oberts''*'^-°^ ridiug a wild horse, these were all facts against which the owner ART. was bound to guard in the duty he owed to the public, duly to fence damages for the mouth of an old coal pit close to an open road, having no fence Y—i^h.ei^f''^^ either side of it. Hence the fault imputed to the individual in le miner was^U these cases, was not one which bore on the responsibility of the t the time do- defender. But- holding that the cases do not aid the pursuer, still 16 master so^-'^^^® remains the undoubted and most important obligation on the 3 to cause 'lia- employer, to have the shanking of his pit at all times safe and suffi- '^'y- cient, to prevent danger to the workmen ; and the c[uestion is, whe- ther the direction is sound which directs the jury, if certain facts are proved not to draw from a casualty arising from the insufficient state of the planking, the liability which would otherwise arise. I thought the question a very nice point at the trial, and I have since enter- tained the strongest doubts of the soundness of the direction. Per- haps I entertain the more doubt, as it is a direction by myself. I find, however, that two of your Lordships think, on deliberate consi- deration, that the direction is correct in reference to the special facts to which it was applied ; and, with the deference due to these opi- nions, I have, on the whole, come to the conclusion that it is the most safe and correct application of the principles of law as to an employer's responsibility. But this, solely in reference to the special nature of the facts, proved a state of facts so very special, that one can hardly suppose that this case can be a precedent of vse in other cases. Lord Medwtn. — What is the deduction in point of law, from the findings in fact of the jury on the first point ? If, by finding for the defender, they af&rm the facts noticed in the direction, with the addi- tional observation, that Marshall had no proper cause for leaving the work at that time, is the employer responsible for the accident ? This is a case of novelty, and of considerable nicety, but it is one which I have had already to consider ; and I had occasion, not very long ago, to express an opinion on a similar case, where I thought that the em- ployer could not be held responsible for any accident to a workman, unless it was while he was in the execution of the work of his em- ployer, and done according to and not against his orders. It was the case of Neilson v. Dickson. The view I took of the facts from which this plea arose was not in accordance with the opinion of the rest of the Court, so that no opportunity arose for being instructed by the majority of the Court, whether my opinion on this point of law was erroneous or not. The case is one of difficulty unquestionably ; but I am still inclined to think that, in such a case as the present, the employer is not responsible. I think it was not alleged that if a workman went down the pit on Sunday, out of curiosity, or from any other cause of his own, and was injured by the unsafe state of the pit, he or his relations could have any claim against his employer. A stranger, in like manner, would have no claim. It was admitted that, if Marshall had come up, not in the usual way provided by his DIGEST OF DECIDED OASES. 141 employer, standing in the cage, but holding on by it, and lost his BEYooNor hold, so that he fell to the ground and was killed, no responsibility '^fo^^^'^^D'' would attach to the employer. Nay, I think I may approach even Clelanb Jhotc nearer to the present case, and'say, that if, on occasion of a man hold-* C!°-^''Co- and ing on in this manner, a stone fell on his hand and caused him to "''^^pj, ^"■^' lose his hold, yet the owner would not be liable in damages ; as had pamages for he been in the cage it would not have struck him. When the law ^'^V^ '^ a coal imposes this severe responsibility on the employer of workmen, to the miner was have all his machinery, and the work itself, in as safe and sufficient at the time do^ state as possible, I think there must be a corresponding obligation j^| '''® '^°^^ *** on the other side, that the workmen should incur no farther risk than a& to cause 'lia-< is necessarily incurred by them in respect of their duty to their em- bility. ployer, to execute the work for which they are engaged. If Marshall had no proper cause for leaving his work at the time he did — if he had continued employed for his master he would not have been coming up at that early hour : and I cannot see that his employer is liable for the accident, which occurred by his improperly leaving work at that time. I felt a good deal of difficulty in coming to this conclusion, when I recollected the cases where the Court held that a trespasser even was entitled to reparation for injuries by an un- fenced coal pit, although he was to blame in going near it ; and it might be, though multo majus, that if the employer brought a work- man to the spot, even if he acted in some respects incorrectly, so as not to be engaged in the employer's service, this would stiU keep the master responsible for the safety of the workman through inseciire machinery. But the case of the trespasser may be resolved, on the same principle which prevents a spring-gun being placed in a pre- serve. The object to be gained is not for one moment to be placed in competition with the risk to human Hfe, and therefore to that extent the proprietor's right to protect his property from trespass and invasion is abridged, in favour of the pubhc at large, more espe- cially when he had it in his power to exclude the trespasses of the public by properly fencing his property. For, unquestionably, it is the duty of a proprietor to fence his property, and exclude the public from using it ; and if he does not, then he must take care not to leave a coal pit unfenced in the way, so as to be dangerous, as in the near vicinity of a footpath often taken by the people, although they may have no positive right to use it. And it is observable, that in all the cases this was the character of the danger to which the public was exposed ; for in CadeU's case the pit was within four feet of the footpath ; in Mack's, in 1832, it was within three feet ; and in Sir P. DurJiam's, in 1842, it was still nearer, for the footpath led to the very brink of the pit, in which the unfortunate girl met with her death. But it has not been decided, that if the trespass is to a greater extent, the same result will follow. Further, these depend on quite a different principle from the obligation of the employer to his workman, and their reciprocal duty to him, farther, is, and must be, an individual and corresponding obligation on them, not to enlarge his responsibility beyond the limits required for doing the work, for ] 42 DIGEST OF DECIDED CASES. Bkydon or which he employs them. I am for finding, in law, that the defendpr f%Xorai.d''-i«5ot'^e«PO^«iWe. Clblaih) Iron Lohd Cockbhen. — It IS a question of law now beiore us, and the "I'i Co^'^ C'o- exact circumstances and position of the question must be kept in ^Stbwabt!^ view. It arises on the direction of the presiding judge, — the sub- Damages for stance of which is, that the men, iastead of contiauiag in the mine injii^ m a coal jjjj ^j^g evening, left their work in a body for a purpose of their own, the miner was tliis purpose being to make a complaint to the employer more effec- at the time tuaL The question is, whether these facts liberated the employer rfttie maste*-^°"^ the duty of having the pit in a condition consistent with the so as to cause' men's safety. I am clearly of opinion that it did not ; and this for liability. two reasons : — 1st, The men had gone down the pit lawfully, so far as appears. Being down, they were entitled, so far as appears, to come up. They were not bound to pass the rest of the day there. They were perfectly entitled to complain to their employer, and even to combine against him, — though this, Uke aU such complaints and combinations, even when just, was against the employer's interest. Their leaving the pit was, so far as we are entitled to hold, in the prosecution of a lawful object, and accordingly the reverse is not given to the jury as one of the facts on which, in order to raise the legal question, they had to make up their minds. It is true that this verdict finds that they had ' no proper cause for leaving their work.' What is meant by proper cause is not clear ; but its meaning is im- material, because we cannot act on the verdict until it be first ascer- tained whether it was preceded by a correct direction. If the direc- i tion was wrong, we have no sound verdict. 2d, Let it be assumed that, in ceasing to work, the men were acting illegally, and also in coming up at the time they did, does it follow that their employer was liberated thereby from the obligation for their safety, on which they naturally relied i I cannot think so. The authorities seem to me to render this impossible to be maintained. The cases of persons hurt by neghgence, even though they received their injuries while committing offences^ are decisive of the principle; It cannot be maintained that the duty of carefulness need only be practised in favour of such of the liegesi as are acting with strict legal correctness, and therefore stand least in need of other people's care. Poachers would have little to say against spring-guns on this principle, — drunkards against open pits, trespassers against ferocious dogs or wild bulls. A master is bound to keep the stair of his house in a condition consistent with the safety of hisi domestic servants, — one of them is killed when coming down. Is it any answer to a claim of damages that the servant was leaving the house, not merely in disobedience, but with the design of breakup his contract by not returning ? This was a purpose of his own, and against his, mas- ter's interest ; but stUl he was not obliged to submit to be tumbled over a broken stair. The deceased James Marshall may have been wrong in not staying in this pit a few hours longer than he did, but I have no idea that this justified his master in kUling him. T am of opinion that judgment should be given for the pursuer. DIGEST OF DECIDED CASES. 143 Lord Murray. — Agreed with the maiority; and the Court pro- Bkydon or nounced this judgment :— ^. Omoa and ' Eefuse the motion for the pursuers on the question reserved Clelahd Iron ' for them, namely, to move on the ground that the direction in the*^°-"'^"-^"^ ' first point was wrong in point of law, that the verdict should on j^t. '■ that ground be entered up for them, on the second branch of the pamages for ' verdict, namety, as a verdict for damages in their favour; and o^ p°t^^hether * the motion of the defenders find, in respect of the said deliverance, the miner was ' that the verdict must be entered on the first part of the verdict as »* tl>e time do- ' one for the defender, and therefore assoilzie the defender from the^f ^^g^ so ' conclusions of the action and decision.' as to cause lia- The pursuers appealed to- the House of Lords, maintaining that the bility. substance of the direction was erroneous in point of law, and amounts to this, that if the servant came up from the pit without just cause, the master could not be responsible for injury arising from the de- fective planking of the mouth of the pit. This is neither the law of Scotlamd nor England. The law on this subject was said by the House to be the same in both countries. The deceased had a per- fect right to be down in the pit, and he had a right to be brought up safe. The evidence does not show that the relation of master and servant had ceased. The defender contended that the charge given by the Judge in- volved a sound principle of law, viz., that a master can only be re- sponsible for the safe state of the pit to the servant, while such ser- vant is in his employment. Unless this were so, there would be no end to the liabUil?^ of masters. Here the servant had repudiated th« employment, and the relation of master and servant had ceased, and there is no principle on which the master can be held liable in a case of this kind as against a mere stranger. The case was advised on 13th March 1855. Jur. 27, p. 321. The Lord Chancellor. — The facts of the case as now stated, ap- pear to be these : There was a dispute among the workmen upon several points. They contended that the lining, as I think they call it, was not safe, — unhappily it turns out that they were correct about that. It was said that it was safe. They contended farther that there was not proper provision for supplying air, and there having apparently been some disputes for some days before on this subject, they went down, and it is said by one of the witnessesj that they went down wT?th the determination not to work. That, however, is a matter of controversy — some say they did — some say they did not. On the contrary one of the witnesses expressly says that he went down and did work. Henry Wylie said he worked^ and John MiUer said he worked. But however that is immaterial. Some went down and worked, and some did not work. But I wiU put it in the strongest possible way, that they all went down meaning not to work, that is to say, they all went down (it is said they were working by piece-work), with the determination to make their remonstrances, and to object to work unless some remonstrances were attended to — probably anticipating that they would not be attended to, and, in tha/t sense, not intending to 144 DIGEST OF DECIDED CASES. Brydon or -vyork. When they went down, they went safely down. They V. Omoa and ' ^^^ their meeting as they called it. First of all, one refuses to Clelamd Iron come, and goes on to work, and then another, and so on, but &CoALCo.andgQa,iiy they have a meeting, and they resolve that they will not ART. work. Their grievances might be well-founded or ill-founded. Re- DamageB for solving not to work, they make the proper, signals and, they are drawn St^^hetheT'^P' ^^^ *^® accident happens in their being drawn up. What is the miner was contended for on the part of the respondent, and to which the di- at the time do-jection of the learned judge is pointed is this, that in such circum- thema^stersoas®*^^"®® there is no responsibility by the law of Scotland, in respect to cause lia- of an injury occasioned by the defect of the machinery. Now, my bility. Lords, in my opinion, not only is there responsibility by the law of Scotland, but clearly there is that responsibility by the law of England, also, which is thought to be less strict on this point than the law of Scotland. A master by the law of England, and by the law of Scotland, is liable for injuries occasioned by his neglect to- wards those whom he employs. I quite adopt the argument of the Solicitor General, that he is only responsible while the servant is engaged in his employment, but then we must take a great latitude in the construction of whatisbeing engaged inhis employ. Itwouldbe a monstrous proposition indeed, if having sent a workman down into a mine to work for me, and he then choosing no longer to be em- ployed, and ceasing therefore to be employed, requires me to take him up again, that the taking up should be held to be taking him up without my being liable for the due caution, for which I was liable when I let him down. That is not the meaning of the law. If hav- ing taken him up, I afterwards dismiss him, or he remains in my employ, and means to come down to-morrow into the mine again, and in the interval he does something, not in the course of his em- ployment, the master is not by the law of Scotland, or by the law of England responsible for it, but whatever he does in the course of his employment according to the fair interpretation of these words eundo, morundo, et redeundo for all that the master is responsible, and it does not in my opinion make the slightest difference that the work- men had, according to the finding of the jury, no lawful excuse for not going on, nor proper cause for leaving their work; that is to say, there was not, as the jury thought, that danger in respect of the air, or that danger in respect of the lining, which ought to have induced the men to say that they would not work. Even if they had been employed as daily labourers, if they wrongfully choose to say, "we will not work any more," and if without proper cause for so saying, they had said, "w.e will terminate our contract, now take us up again" it was unquestionably the duty of the master, qua master, to take them up safely, just the same as he brought them down safely. For that purpose the obligation of the master con- tinues in that sense after the termination of the service, after they have in truth continued to work in his employment, and while they were only causing themselves to be removed from it. It appears to me, therefore, that the direction of the learned judge, in the first issue was, as the learned judge seems himself to think it might pro- DIGEST OF DECIDED CASES. 145 bably turn out, not sound, and consequently that the verdict ought Brydon or to have been given on the second issue. In my opinion it is quite ^qmoa'and'' clear by the law of England and of Scotland, that the injury hereOLELAjsD Iron happened to this man from the neglect of his master, while he and Coal Co. was sustaining the character of master towards him, and conse- Stewaet. quently the verdict ought to be entered up upon the second issue, Damages for and not upon the first. '^^"^lolt^S- LoRD Brougham agreed. It is perfectly clear that it makes no whether the ' difference whatever in this case, whether there was want of proper miner was at cause for coming up from the mine which the jury had found by the J^^ wmirfThe verdict upon the first issue. The master who lets them down is master so as to bound to bring them up, even if they come up for their own busi- "^^^ liability, ness and not for his. He is answerable for the state of his tackle, by -which this lamentable accident was occasioned. Interlocutor reversed, and case remitted, with instructions to enter the verdict upon the second issue, for the pursuer, £150 damages with costs in the Court below. 8th July 1852. — John More Nisbett, Pursuer, againstJ;.J^;^/^^^^ William Dixon & Co., De/eTiciers. — D. 14, p. 973. Jur.., . co- _ " '■ Injury from 2 4, p. 605. setting fire to a coal-pit — prin- cipal tenant of The pursuer was proprietor of the lands of Dykehead. ^^« J'^^^^o^ In these lands there was coal, which was let to Messrs. der him. Frew ; and ironstone, which was let to the defenders. The ironstone was situated below the coal, there being about 1 4 fathoms between the respective workings. In the lease of the ironstone, the pursuer reserved the liberty to himself, or those appointed by him, to go down the pits and into the mines, to inspect the operations below ground ; and the de- fenders should not be entitled to interfere with or interrupt any present or after workings of the coal situated in the lands, whether above or under the ironstone, through which the pursuer reserved right to sink pits at pleasure, without any compensation. The defenders had entered into an agreement with Nimmo and Watson, to work and put out 'the ironstone from the pit. The contractors were to enter into possession of the pit ; draw out the water, for which they were to be paid £6, and after the water was out, ' We shall commence work- ' ing the stone, and filling up the pit with as many men as ' the workings, will' contain, which we engage to carry on K 146 DIGEST OF DECIDED CASES. ^' w dSon^' regularly and constantly ; and after the first two months Co. ' from the date hereof, the output shall not be less than 100 setting fire to a ' tons Calcined stone weekly ; or failing our putting out oS^teQant'rf ' ^^^^ quantity, upon the average of two months running, mine liable for' at any time, you shall have right to put an end to contractor nn- "^ , . , . , derhim. ' this agreement, &c. — ' The workmg shall be earned on ' regularly and fairly, and agreeably to the instructions of ' you and your overseer.' — ' You shall pay us each fortnight, ' for the stones raised and put out by us, and the men we ' employ, at the rate of 8s. 2d. for each ton of calcined stone. ' — ' We engage to make all the miners we employ sign ' the "conditions of the contract of the contractors of WiUjam ' Dixon & Co. and their workmen," agreeably to the ' printed form subscribed by us as relative hereto,' &c. — ' Should miners' wages come to be advanced, we shall be ' at liberty to quit and give up this agreement at any time ' thereafter, upon giving one month's notice in writing on ' any pay-day after said occurrence shall have taken place. ' Should we find, after the pit has been fairly started, that ' the same does not pay us, we shall, after the first month's ' work, be entitled to give up the same, after giving a ' month's notice that the agreement is to terminate.' A fire took place in the Dykehead coal, tenanted by the Messrs. Frew, and it appeared to have been caused by the operations of calcining the ironstone. A large heap of ironstone had been placed on a portion of the surface, called a ' hearth : ' some fissures had taken place underneath this heap, in consequence of its weight pressing upon ground which had been excavated by the coal workings. Watson lighted the heap, for the purpose of calcining the ironstone, and portions of the ignited mass fell through the fissures, and set the coal on fire. The fire was only got under some months afterwards, at a considerable expense, and this action was against Dixon and Co. for £1 828, 4s. 8d., the expense of extinguishing the fire. The issue put for trial was, ' Whether, in the course of ' the year 1840 and 1841, a fire took place in one of the ' coal-pits within the said lands of Dykehead aforesaid, in ' consequence of the fault or negligence of the defenders, ' William Dixon & Co., or of some person or persons, for DIGEST OF DECIDED CASES. 147 ' whom the said defenders were and are i-esponsible, &c J-M. Nisbeit v^ vYt Dixon & ' and whether the amount sued for was expended in extin- Co. ' guishing the fire,' &c. The judge directed the juiy to sayLl".^ lleZ a whether, in their opinion, the fire took place in consequence """^JP^p^j of the fault or negligence of Watson, and also whether the™ne liable for sum claimed, or any and what part of it, was expended inderMm""^ """ measures reasonable and proper, in the circumstances, for extinguishing the said fire, — reserving to the Court, in the event of these questions being answered in the affirmative, to determine whether, in the circumstances disclosed in the evidence, the defenders were liable for the fault or negli- gence of Watson ; and to enter up the verdict for the pur- suers or defenders, according as that question may be deter- mined in favour of the pursuers or defenders. The jury found that John Watson was guilty of fault and negligence in setting fire to the bin under the then existing circumstances, but under the reservation mentioned in the charge of the judge. Both parties moved the Court to enter the verdict for them respectively. LoED Pbesident. — (After explaining that the verdict of the jury must be held as proving that the setting fire to the bin carried the fire to the colliery) said : — The next question was, Whether the de- fenders are responsible for the fault or negligence of Watson. There has been much discussion on that subject in regard to a department of the law, as to which there has been much vacillation and change of opinion. It was necessary that this should be. There are new employments springing up day by day, which consequently give rise to new questions ; and it may be, that these employments, in the course of formation, may be in that medium state, that it is diffi- cult to define the character in which the parties are acting. We must look at the circumstances as they occurred. Indeed, the question is. Whether, in the circumstances which occurred, the defenders are responsible for the act of Watson. I must notice the relation which subsisted between the defenders and the pursuer, the nature of the operations, and of the subject that was injured. The defenders were tenants of the pursuer, under a lease. It was a lease of an heritable subject. They entered into a contract with the pursuer, by which they bound themselves to take out the iron- stone, to carry it away, and to calcine it on the ground. We have not any statement as to the title of possession of the land on which the ironstone was to be calcined. But it does appear that the calcin- ing of the iron was, in the understanding of the partioo, a part of J 48 DIGEST OF DECIDED CASES. i'w.'Dixo™ *^® operations to be carried on. From the terms of the tack, dated Co. 28th January and 4th February 1835, it appears that it was a matter s^ti^ fee to a,^^^ ^^^ ^" ^^^' ^ estimating the lordship to be paid. The iron- coal-pit— prin- ®*'°^® ^^® ^°^ '^e mineral which was nearest to the surface ; the coal cipal tenant of was, and it was a valuable subject let to another tenant. It may be S)ntrS%n-*^^*' ^^.^^tween the tenants of the coal, and the tenants or rather der him. ^^^ calciners of the ironstone, there was a mutual duty — on the part of the coal people, not to come too near the surface ; and on the part of the calciners, not recklessly or carelessly to expose the subject under them to risk ; as between the landlord and the defenders there was an impUed obligation on the part of the defenders, that in exer- cising the privilege of calcining the ironstone, they were not negli- gently to expose the other subject, viz., the coal, to' risk. Now, the injury complained of here, and which gave rise to the expensive operations which have occasioned this question, was the setting fire to the coal through the carelessness of Watson in carry- ing on the operation of calciniug. It is an established fact, that the coal was injured through the carelessness of those who carried on that operation. The landlord has suffered damage through the negligent manner in which the objects of the lease which was granted to Dixon were carried out. Damage was done to the real property of the landlord, in regard to which the defenders were under an im- plied obligation of carefulness. This is in some respects different from an injury occasioned to a bystander. This is injury arising from the negligent manner in which this particular operation is executed. The defence against the claim is this, tliat Dixon and Co. did not themselves calcine the iron, but contracted with another party to do so : that "Watson and Mmmo were the contractors, and that it is now fixed law,' that a party is not responsible for the operations of another party employed by him, who is known as a contractor. And it is put to us, that these parties were contractors and not servants, Wat- son being the party on whom the negligence is fixed. The agreement between Dixon and Co. on the one hand, and Nimmo and Watson on the other, is a writing of a very peculiar kind. No doubt, the word " contractor" wont settle the question of liabiUty. In Eankin's case the word "contractor" is used through- out in connection with the direction given, that the position of a contractor was truly that of the party employed. We must look at the actual relation subsisting between the parties. Now, it is true that Nimmo and Watson agreed to put out the ironstone, to employ such persons as they chose, and that they did employ thirty persons. They were bound to go on with these oper- ations, and the agreement was to be put an end to in a certain event I do not observe that Dixon & Co. had any right to put an end to. the agreement. If they meant to stop the working, I presume they could do so, and that the parties could not go on, and take out aU the ironstone in that tenement. Therefore the case comes near to be a case of parties who employ contractors ; and the question is, whether this agreement was one whereby Dixon and Co. devolved DIGEST OF DECIDED CASES. 149 away from themselves the responsibility of every thing done to the J- M- Nisbetf prejudice of the landlord by the negligence of these parties. "' ' Oof'°* This is not like a contract to produce one complete thing, such as Injury from a contract to build a house or ship; it is a contract of service, — insetting fire to a substance it is that. No doubt Nimmo and Watson are to furnish cer- oipal tenant of tain things, viz., sleepers. It is one of those mixed transactions, mine liable for partaking of the nature of a contract, but which is matoly employ- ^'^^^^^^ "''" ment. It is not a matter vyliich is brought into the position of a separate and independent calling, from the labour which is bestowed upon it. The transaction which is nearest to it is a contract for the construction of part of a railway. That is a contract for employ- ment of labourers. But that is a contract for beginning and ending of a particular piece of work. It is not like this contract, which is to take out ironstone, and to calcine it. That was truly Dixon's contract with the landlord. It was not to be necessarily expected that they would do this with their own hands, or by pay- ing wages to workmen. But could they, by employing other persons to do it for them, relieve themselves of the liability f Looking to the cases which have occurred, I do not think it has been held that such persons as Ninmio and Watson are those on which such a responsibility entirely devolves. The difficulty is not in the doctrine, but in its application. The first case referred to — that of Eankin — is very near, indeed, to the present. In Eankin's case, it is true, there is nothing but the ruling of a single judge, and there was not before the jury the particular evidence we have to deal with here. But there was evidence of a transaction between the parties similar to that which here occurs. I do not think that the circum- stance of the agreement having been reduced to writing will, transfer the liability from one party to the other (Bead's report of Eankin's case, March 19, 1847). I do not think that the views of the Court, in the case of EusseU, M'Nee, and Campany, affect this question. In that case there was a person exercising a separate and independent calling. It was one of those ordinary trades which are continually resorted to. They ' were persons following out a well-known occupation. It was the act of one of those sub-contractors, not in reference to any use which they had obtained of property belonging to the primary contractors, but in reference to some operation which they had to perform — an injury which was done to a passer-by. That case has no bearing on the position of the parties here. It was not damage done to a neighbour's house, but damage in reference to something which he had to do. EusseU, M'jSTee, and Co., had nothing to do with the operation conducted by the sub-contractor ; but here the ironstone belonged to the other party. They had between them but one trade — that of calciners. We have had cases of injury to neighbouring, property, as in the case of Callender v. Eddington, (4 Murray's Eeport, p. 108). A party executing repairs under the employment of the defender, brought down or cracked the house of a neighbour. It was not then pleaded that Eddington was not responsible, and there can be 150 DIGEST OF DECIDED CASES. J. M. NisBETrno doubt that he was. It was the opinion of men of skill who were V. W. Dixon & examined, that the operations might have been carried on in such a Injury^ from manner as to occasion no danger or damage ; but as this had not setting fire to a been done, the defender was held liable. «?*1-P*^-^™- The case of Douglas v. Monteith, (4 Mur. Eep., p. 130,) occurred mine liable for in Glasgow. By certain repairs which were executed, the ground contractor un- -^vras made to subside so as to injure the neighbouring house. The der him. owner got damages. These are cases of injury to a neighbour's property by the abuse of one's own. But these cases are different from the case which occurs here. The sub-arrangement or sub-agreement " here entered into, is not such as to give the sub-contractor such a position that the party can relieve himself of the responsibility otherwise attach- ing to him in reference to his landlord. The case of Bapson v. Cuhitt is similar to those I have described. I therefore think, on the whole matter, that Dixon & Co. are liable for Watson. Lord Cuninghame. — It was not contended, in argument, that if the defenders had wrought the ironstone contained in their lease by day-labourers, under the sole superintendence of their own over- seer, and if the bin had been fired by their workmen, the defenders would not have been liable for any serious damage committed by their fault or negligence ; but it was strongly pressed on us that the defenders are not within this rule, that they wrought the ironstone not by labourers paid by the day, but by Watson ks a contractor, who is solely liable for his own negligence and wrong. It appears to me that this plea rests on palpable fallacy, incon- sistent with the sound principles of law, and with any right pre- cedent applicable to the case. The landlord contracted with the Messrs. Dixon alone j they were, ex contractu, liable to him for every damage improperly sustained in working the ironstone ; and as the tacksmen could not assign their lease, they could not transfer the obligation to repair damage wrongfully sustained to another, whom the landlord neither knew nor accepted, and was not asked to accept as an obligant. It would be a serious doctrine to promulgate, that a trading manu- facturing company is not liable for injury committed by negligence and unskilfalness, in works going on for their benefit, because they did part of their work by contracts with humble and often irre- sponsible parties. No such plea has ever been recognized, but the reverse. It is sufficient to answer, that parties in the situation of the defenders are bound to have overseers of vigilance and skill to superintend and check the contractor. There was a specific right given to-the defender's overseer to superintend the contractor here ; and if he failed in his duty, or was too ignorant to control what was necessary, the defenders were surely liable for his gross mistake and fault. It has been abeady observed, that the plea of the defenders to shift their responsibility for loss and damage sustained by the negh- gligence or unskilfalness of a sub-contractor, would be subversive of DIGEST OF DECIDED CASES. 15] the rights of parties as constituted by leases, and other analogous J. M. Ni8bett contracts of great importance and common occurrence in the business"- ^- Dixon & of the world : and I haye no idea that there is any understanding jQJ^ry from in the country, or among lawyers, to limit the responsibility of setting fli-o to a parties primarily bound to repair damage in the manner here con- "oai-pit— prita- tended for. The law, as immemorially understood and enforced, jtane liable for renders all employers liable for the negUgence of subordinates, in contractor un- whatever way they are hired and paid, when not constantly and^®'-'''™' strictly superintended and controlled by the chief employers or their overseers. Hence, if a man employ a builder of repute to erect a house for him, that party could not, by letting out the mason-work to a sub-contractor, transfer his responsibility for a faulty or insuffi- cient wall from himself to the sub-contractor, previously unknown to the principal employer. Nor could a stage-coach company, by giving sub-contracts to separate dealers or innkeepers for horsing each stage, (a common practice,) escape from liability of serious damage sustained by an unruly team put on that section of the road thus sub-let. A defence on such grounds appears to be altogether out of the question. But in the present case, the obligation of the principal tenants is broader and more direct than in most cases of injury complained of by third parties and strangers, from common obstructions and casualties occurring in places of public resort. In cases falling within the category of the present, there is a direct contract between an owner and tenant, which cannot be discharged or transferred to any sub-contractor or assignee without the consent of the other prin- cipal contracting party. IiOBD Ivory. — ^The second question i% whether, on the under- standing that the verdict is right, and that there is to be no new trial, the defenders are answerable for Watson. I shall only add two general propositions to what has already been said. The cases which have occurred hitherto have all been cases with third parties, not compHcated by any contract with the party suffer- ing the injury. The injury has always been to some third party whoUy unconnected with the matter. They were cases of employ- ment of tradesmen within their proper calling — such as a mason, a plasterer, or gas-fitter — employed in things which the individuals employing them are not expected to do for themselves. These are things in their nature separate and distinct. But here the case is different. The injury is suffered by something done in the course of the defenders' exercise of their own rights. It was a matter strictly within the defenders' calling. They called in a subordinate party to perform a subordinate operation within their own trade. The party so called in belonged to the defenders' trade, and was subject to the defenders' instructions. The work was to be done on their own premises, and all in execution of their own trade and work. That view comes out with greater effect fr^m the position in which the parties stand in reference to the contract, of lease. The C0ntract refers to a certain iield of ironstone. They bind themselves to perform certain duties which are entirely their own. They cannot 152 DIGEST OF DECIDED CASES. J. M. NisBETT delegate or transfer these duties. They may, no doubt, employ V. W. Dixon & subordinates, but they cannot transfer their, responsibilities to them. Iniury from The trade which they undertook to forward was to calcine ironstone, setting fire to a They did SO upon their own responsibilities, which are not transfer- coal-pit— prin-g^^jg_ This is stronger than the case of Rankin, mine liabl* for The Court entered the verdict for the pursuer, contractor un- der him. Bankin, &a. V. 1 9th Maj-ch 1847. — The case of Rankin and Others, against Pri^o^pai ten- WiLLiAM DixoN and Co., 19th March 1847, (9 D. B. M. stoneiiabie'for 1048,) referred to in the preceding judgment, arose from contractors nn- nearly similar circumstances. der them m ■' their mode of working it. ju thg year 1840, or beginning of 1841, a fire broke out in the coal workings of Dykehead, possessed by Frew and Co. It commenced in the workings beneath the sur- face on which Dixon and Co. were calcining their ironstone. The pursuers of the action were the proprietors of the adjoin- ing lands of Whiterigg. The coals on the lands of Dyke- head were let to Archibald Frew and Co. by the proprietors, the trustees of George More Nisbet. The ironstone on the lands were let to Dixon and Co. The fire was allowed to burn for some time, as neither of the parties admitted lia- bility ; but at last, an agreement was come to for extinguish- ing the fire, reserving the rights and pleas of parties. The pursuers, under the agreement, paid two sums of £1734, and £306, towards extinguishing the fire, and they raised action against Nisbett's Trustees, Dixon and Co. and Frew and Co., for repayment. Nisbett's Trustees pled, that the fire having been caused by no improper act on their part, or on the part of any one for whom they are responsible, they were not liable — and as landlords having let the property for a legal purpose to a tenant, they, as landlords, were not liable for the tenant's act. Frew and Co., tenants of the coal, held — That they did no wrong in working the coal as they had done, that the fire was caused by the workings of Dixon and Co., and con- sequently the latter were liable in the expense of extinguish- ing it. Dixon and Co. maintained, that they could not be liable DIGEST OF DECIDED CASES. 153 — the fault being in the landlord, or in the tenant of^''*"''' *°- '"■ . ° ' Dixon & Co. the coal leaving sits and fissures in the ground, while the Principal ten- 1-- ,. .n * ti o ' 17 ants of iron- calcmmg operations were earned on m the iair and oowa atone UaWefor fide exercise of a legitimate right. Considerable discussion ^g"*'*^*™^™" ensued on the relevancy of the action against some of the tteir mode of defenders, which was reserved, and the case sent to the jury, as against Dixon and Co. alone. It appeared in the course of the evidence, that Dixon and Co. had employed contrac- tors vmder them to calcine the ironstone on a berth under which the coal had been wrought out to the crop — that the coal had been worked on the stoop and room sysbem, and there were various sits in the strata, leaving openings up to the surface from the coal waste, and these openings had been filled up by the contractors with blaze, which is a very inflammable material, and that this blaze took fire when the process of calcination was going on, that the fire com- municated to the pillars of coal left in the waste beneath, and soon extended to all the surrounding strata. Sits were also caused by the weight of the material laid on the sur- face by the contractors ; and after these sits occurred, the fire was lighted, and no precaution taken against the fire communicating with the coal. The contractors were engaged by Dixon and Co. under a written agreement at first, and afterwards on a verbal one. They calcined aU the ironstone at so much per ton, which was paid to them by Dixon and Co., according to measurement, once a fortnight — they hired the workmen and paid them, and Dixon and Co. had no direct management of the calcining operations. Dixon and Co. denied that they were liable for the con- tractors. These parties were not ordinary servants, for whom they, as masters, were liable, but independent contractors, with important powers, liable alone for any tortious act com- mitted by them. The jury returned a verdict for the pursuers, reserving to Dixon and Co. relief against the other defenders. Lord Pbesidbnt. — I have no dif56iculty in laying it down to you in point of law, that Dixon and Co. are responsible for the acts of the contractors. They were in no different position from any other labourers hired by the month to work by the piece ; and, if so, it is for the jury to say whether or not these contractors were not culpably reckless and negligent in the mode of calcining. 154 DIGEST OF DECIDED, CASES. b-^^jHen^n. 4th Nov. 1852. — R against HenSon.— 20 L. T. 63, (Q.B.) infection by a diseased horse. Defendant was indicted for bringing a mare into a public place, where the lieges were passing. The indictment alleged tihat defendant weU knew that the mare was then 'infected ' Avith a contagious, infectious, and dangerous disease called " the glanders,' and that ' he wilfully led the mare into the ' said public place, amidst and among divers liege subjects ' there going, passing, and staying,' to the great danger ' of " infecting with the said contagious, infectious, and dangerous ' disease called the glanders, the liege subjects of our Lady ' the Queen, who, on the said day and time, were in and ' near the said public way and place, to the damage and ' common nuisance of all the said liege subjects,' &c. De- fendant was convicted by the jury ; and his counsel after- wards moved, in arrest of judgment, that the indictment was bad, because it did not allege that defendant knew, that .a glandered mare coUld communicate its disease to a man, which, in fact, the defendant did not know. The Court of Queen's Bench held it was not necessary for the indictment to allege that defendant knew that such SI disease was communicable from a horse to a man. The verdict was therefore good, and judgment could not be arrested on that ground. mabshallb. 15th Nov. 1852.^Maeshall against York, Newcastle, eSSvayGo^' and Berwick Railway Co. — 21 Law J. (C. P.) 34. Liability of for i^ggageof ^ord Adolphus Vane and his servant (plaintiff), entered a servant. ^jje railway at Darlington, the latter putting his portmanteau in the train, and the former paying for tickets for both. The portmanteau was lost on the road, and the servant sued the company for the damage. The company argued, that as the master alone had entered into the contract, none but" he could sue them. — Powell v. Layton, 2 N. R 365. That the servant could only sue for a personal injiiry, but that the duty to cany a servant's goods did not arise out of their contract as common carriers. Plai/ntif cited Gladwell v. Steggall, 5 Bing. N. C. 733. The Court gave judgment for the plaintiff. DIGEST or DECIDED CASES. 155 Jervis, C. J. — It was admitted that if the plaintiff, instead of Marshall v. losing his property, had broken his leg, he could have had an action R^^^^^^^f for his personal suffering, and his master might have sued for the Liability of loss of his service. But in what respect could the plaintiff have an^'l'^'ay Co. action for his personal suffering, not because there was a contract i°^^|^tf®°* between him and the company, but by reason of a duty irrespective of the contract. In that view, therefore, if plaintiff could recover for his personal suffering, the same admission would apply to the loss of his property. The duty of the defendants to carry the goods, was the same as the duty to carry the person of the plaintiff. 19th Nov. 1852. — Hoeridge against Willoughbt. — Hoeridgei.. ..- ™ X. -^ WlLLOUGHBY. 20 L. T. 97, (C. P.) Liability of ferryman for The defendant was lessee of the feiTy between Birkenhead'**^ *^''°'"- and Liverpool, and took plaintiff and his mare on board. It was not the ferryman's custom to take charge of live cattle on board, and plaintiff kept charge of the mare, and defendant did not interfere. On landing, the pier being some feet higher than the boat, slips with handles were used for passengers, and also for cattle. The hand-rail being broken and tied with a cord, gave way under the mare, and • seriously injured her, so that she required to be killed. The plaintiff sued the ferryman for her value, £31, 10s., in the County Court, alleging that defendant was liable as a carrier, whose negligence caused the loss. The Judge held defen- dant liable, and this was an appeal to the Cotirt of Com- mon Pleas. The Court aflfcmed the decision. Jeevis, C. J. — At the trial below, the objection now sought to be raised, that defendant was not liable as a carrier, was not taken ; the objection there was, that he was not liable because he had not the personal care of the mare. The summons does not seem to imply that the action was brought against defendant merely as a carrier. It may mean that for hire he took the mare, and by his negligence it was killed. If so, it will do. It is the duty of the ferryman to provide everything necessary for the conveyance of passengers and goods from the one side to the other. If he stop six feet from the shore, he might as well stop in the middle of the Mersey — the horses cannot jump from the boat on to the pier, and it is his duty to pro- vide for the means of their being landed. Maule, J.— If the plaintiff had himself been guilty of neghgence, he might not perhaps have been entitled to recover, as having con- tributed to the injury; but there is nothing of the kind here. 1 5 6 DIGEST OF DECIDED CASES bb^^Ly ^^^ ^^^- 1832. — Daniel Gray, Pursuer, against Thomas Master's liabi- Bbassey, Defender. — D. 15, p. 135; 25 Jur. p. 101. lity to servant for injury caused by neg- fjiis was an action of damages against the defender for ligenoe of other . „ . . . ■ n n n i -i • xi, servants, or de- reparation 01 injuries sustained by the pursuer while m the owX-"'*' defender's service. The libel set forth— ' That the said Thomas Brassey was, for some time prior to the ' month of August 1849, and still is, the contractor for the maiuten- ' a'nce and keeping in repair the line of the Caledonian Eailway, * including a portion thereof in the neighhourhood of a place called ' Broadlee, near Ecclefechan, in the county of Dumfries, on which ' Joseph Simson was agent, superintendent, or manager of the works ' for and on behalf of the said Thomas Brassey, and Joseph Dickson ' was time-keeper, and also superintendent on the said line, for the ' said Thomas Brassey, for the acts of both which parties the said ' Thomas Brassey is responsible. That it was tlie duty of the said ' Thomas Brassey, as contractor foresaid, or of the said parties or ' others acting for his behoof, in prosecuting the operations neces- ' sary for the maintenance and keeping in repair of the said Une of ■■ railway, to use all due, proper, and requisite precautions for the ' safety of the workmen employed by him, and, in particular, to pro- ' vide proper waggons for the purpose of conveying the earth, ballast, ' or other materials, along the said line of railway, and to see that ' the same were kept in suitable working order, and had proper ' breaks, and corresponding blocks to regulate them in their proper ' stoppages, and, in general, to provide or see provided, all other and ' similar precautions necessary for the safety of the workmen em- ' ployed by him : That on the 6th day of the month of August 1 849, • or on one or other of the days of that month, or of July immediately ' preceding, or of September immediately following, the pursuer was ' working on a train of waggons used for the purpose of conveying ' ballast, on the said hne of railway, at or near Broadlee aforesaid, ' and while so working he received orders from the said Joseph ' Dickson, who had charge of the train, to uncouple five of the wag- ' gons, in order that the others might be shunted into a siding to ' be fiUed with ballast : That the pursuer, in terms of these orders, ' proceeded to uncouple the waggons, and was about to stop them, by ' applyiDg the break of the last waggon but one for that purpose ; ' but on the pursuer stepping on the break, it slipped down with him in ' consequence of there being no block on it, — which it was the duty ' of the said Thomas Brassey, or those acting for him, to have seen ' attached or fixed thereto — and he fell down, when one of the wag- ' gons passed over and severely injured his left leg, to the serious injury ' of his person, and danger of his life : That by the said injury he ' has been rendered a cripple for life, and unable to earn his liveli- ' hood : That the said injury was occasioned to the pursuer by and ' through the culpable fault, negligence, and inattention of the said Thomas Brassey, or of the said Joseph Simpson, as manager or DIGEST OF DECIDED CASES. 157 ' superintendent foresaid, or the said Joseph Dixon, or of some other Gray v. ' person or persons for whose conduct the said defender is responsible : j«- ^^?^f^i- ' That the defender was aware, or was bound to have been aware, of uty to servant ' the insufficiency of the said waggons, and consequent results as *™ injury ' now referred to, and it was within his power to have provided Jigg^^^^g^^^"^!^ • against the consequences resulting from any waggons being used servants, or ' which had no break, or no proper break or block attached to it, or liefeotive ma- ' which was not in good working order : That in these circumstances, ° ™®'^' ' and as the same will be more particularly condescended on in the ' course of the process, if necessary, the defender is bound and liable ' in reparation to the pursuer, in terms of the conclusions after- ' written : That the said Thomas Brassey is liable in reparation and ' damages to the pursuer for the loss and damage so sustained by ' him.' The defender pled : — 1. That noaction lay attheinstance of a servant against his employer, founded on the alleged fault or negligence of a fellow -servant. 2. The accident could not be held to have occurred from the fault or negligence of the defender, or of any one for whom he was responsible, but from the pursuer's own fault and negligence. Parties dif- fered as to the relevancy of the action, and the nature of the issues ; ultimately the Lord Ordinary held the libel relevant, and appointed issues. Against this judgment the defender reclaimed, founding on the English authorities. The pur- suer maintained, that as there was a direct allegation of negligence on the part of the defender, or on the part of those for whom he is liable, the question was reduced to the point, whether a master is liable for injury done to a fellow- servant. The cases of Rankin and 8word were quoted to shew that he was so, — and that the English principle was unknown in our law — that principle beiug that a servant enters into a contract with his master to undertake all the risks incident to the service. No such undertaking was adjected to the Scottish contract. It was distinctly stated that it was not the pursuer's duty to put on the block. The defender maintained that the pursuer's argument was con- tradictory to the leading case of Linwood. Here also there were no allegations that the persons employed by the defen- der were unfit fbr their respective situations. Again, the pursuer himself was the person to make use of the brake, and it was for him to see that it was in proper order. In the general case, if the master has selected a fit and proper 158 DIGEST OF DECIDED CASES. Gkay v. person to do the work, in the course of which the injury Master's Uabi- has arisen, he has discharged his duty, and no claim will lie for /^ray^™* against him. Each person in takiug service knows that he caused by neg-must incur risk of his fellow-servants' negUgence. In Ran- servants, or kin's case the main ground on which the Court proceeded ohiuery.^ ™*" "^^ ^^^^ there was an absence of superintendence — by the absence of the person who had certain duties to perform. Lord Ivory. — The difficulty I have is as to how we are to dispose of the first plea in law for the defender, the meaning of that plea is, that a master is not liable for the fault of his servant, if there be no ■culpa on his own part, and the English cases were cited to maintaui that plea, not to maintain that a master is in no case liable. But if we adhere to the interlocutor of the Lord Ordinary as it stands, there wiU be no case whatever open to the defender before the jury. There is a case decided in America to the same effect as Rankin. — Stevens V. Tlie Little Miami. Railroad Co., Feb. term, 1850, Monthly Law Eeporter (Boston), new series, vol. iii, p. 74. Lord Pebsident. — In this case we have had a good deal of dis- cussion, a point having been raised which is comparatively new V(dth us, and various recent decisions in England have been pressed upon us, as leading to the conclusion that the interlocutor of the Lord Ordinary should be altered. I am of opinion that that inter- locutor is right. The question we have before us at present, is truly a question of relevancy. We must, therefore, take the allegations of the pursuer as set forth on record. Now, the facts as set forth in his summons are as follows : — First, That it was the duty of Brassey to provide proper waggons, and to see that the same were kept in suitable working order, and had proper breaks and corresponding blocks to regulate them. Secondly, That the defender neglected this, and that he, or some one acting for him, ordered the pursuer to uncouple the waggons, while, through the negligence of Brassey, or of those acting for him, there was no break attached. That in con- sequence of this negligence the pursuer was injured. Now, if the pursuer does establish that it was the duty of Brassey to use proper precautions for the safety of his workmen, ' and, in particular, to ' provide proper waggons, and to see that the same were kept in ' suitable working order, and had proper breaks and corresponding ' blocks' — that the pursuer was ordered to go to this train and un- couple some of the waggons by Dixon, who was acting for the de- fender — that he did so, and, in putting down his foot, found there was no break — that it was in consequence of this he received his injury — and that it was in Brassey's power to have provided against such a deficiency, I think the pursuer makes out a rele- vant case. At the same time, we are not to disregard the auth- orities quoted to us. I think all our own authorities support the relevancy of the Summons. I do not go much on the authority of Lord Keith v. Keir, where the question was, whether the master is DIGEST OF DECIDED CASES. 159 liable where the servant is acting contrary to his master's orders, gbay v. That was an extreme case ; but I think there are other authorities . Bbassey. which support the relevancy of the Summons. The English cases ^jy^^'^^^J^^^^ are put to us as establishing a general rule, that a master is not liable for injury to a servant for injury occasioned by a fellow-servant. I am noto^-used by neg- sure that that is the rule of the EngUsh Law, for I cannot trust my- X° nte, of ^^ self to read these cases. It may be occasioned by my inclination to defective ma- the contrary, but I cannot think that any broad and absolute rule to ct'nery. , th?it effect is laid down in them. The most recent case is that of Hutcliinson. It was tried by Baron Alderson, who says, (19 Law Journal, ¥. S. p. 299), — ' On this Eecord the question is, whether the ' defendants are Uable for the injury occasioned to one of their own ' servants by a collision, while he was travelling in one of their car- ' riages, in his discharge of duty as their servant, in respect of which ' injury, they would undoubtedly have been liable if the party injured ' had been a stranger travelling as a passenger for hire, we think that ' they are not. The principle u,pon which a master is in general ' liable for accidents resulting from the negligence or unskilfulnesa of ' his servant is, that the act of his servant is in truth his ovsm act. If ' the master is himself driving his carriage, and from want of skill, ' causes injury to a passer-by, he is of course responsible for that want ' of skill ; if, instead of driving the carriage with his own hands, he * employs his servant to drive it, that servant is but an instrument ' set in motion by the master ; it was the master's will that the ser- ' vant should drive, and whatever the servant does, in order to give ' effect to his master's wUl, may be treated by others as the act of the ' master; so far there is no difficulty. Equally clear is it, that though • a stranger may treat the act of the servant as the act of his master, ' yet the servant himself, by whose negligence or want of skill the ' accident has occurred, cannot, and therefore he cannot defend himself ' against the claim of a third person. Now, if by his unskHfulness, ' he is hkftself injured^ can he claim damages from his own master, ' upon an allegation, that his own negligence was in point of law the ' negligence of his master ?' The grounds of this distinction are so obvious as to need no illustration. The difficulty is as to the prin- ciple applicable to the case of several servants employed by the same master, and an injury resulting to one of them from the negligence of another. In such a case, however, we are of opinion that the master is not in general responsible. ' Put the case of a master em- ' ploying A. & B., two of his servants, to drive his cattle to market ; ' it is admitted, if by the unskilfulness of A., a stranger is injured, ' the master is responsible, — not so if A-, by his unskilfulness hurts ' himself, he cannot treat that as the want of skill of his master. ' Suppose then, that by the unskilfulness of A., B. the other servant * is injured, while they are jointly engaged in the same service, then ' we think B. has no claim against the master, they have both en- • gaged in a, common service, the duties of which impose a certain ' risk upon each of them, and in case of negligence on the part of ' the other, the party injured knows that the negligence is that of ' his fellow-servadt, and not of his master. He knew when he was 160 DIGEST OF DECIDED CASES. Gkay v. ' engaged in the service, that he was exposed to the risk of injury, Beassby. ' jjot only from his own want of skill or care, but on the part of his lity^to^errant ' feUow-servant also, and he must be supposed to have contracted on for injury ' the terms that, as between master and himself, he would run that caused by neg- i j.jg]j; ' siSvants, or I do not know, except that some of the words are used in perhaps defective ma- too general a sense, that there is much here that we could dissent from, chmery. although the principle on which I should hold liability to attach in some of the cases selected for illustration by Baron Alderson, is dif- ferent from that to which he refers it. Take the case, for instance, of two servants driving-cattle. If a stranger is injured in consequence of the negligence of one of them, he holds the master liable. I could not dissent from that ruling in our own law. Suppose again, one of the servants had injured himself, I should not hold the master liable, but I should hold this, not because the party injuring was his servant, but because every one is liable for his own conduct. The principle of our law is culpa tenet, suos auctores. Then, if one of the servants injures another, is the master not liable 1 Baron Aider- son holds not, but he does not shew very clearly on what principle he rests this opinion, and I am not prepared to say, that by the law of Scotland, when two persons are both engaged in the same busi- ness, in some one operation which requires the combined exertion of both to carry it on, the master would be liable ; but that would not be because they are both servants of the same master, it would rather be because they are both engaged in the same service. But I reserve my opinion on that point. The non-laabiHty certainly would not arise from their being in the service of the same master, one to be regarded as the right, the other as his left hand, and because a man cannot be hable for injury done to himself, and when the case is put of my coachman driving along the road, who injures a stran- ger, say the boy coming to my house with gaiie from the poulterer, or vegetables from the gardiner, I hold that by the law of Scotland, the coachman's master is liable in that case, but if it was his own gardiner's boy, or his own game-keeper bringing game, I am not pre- pared to say the master is not liable, because these two are not co- labourers :^it is a different work they are engaged in, — it is a differ- ent calling and occupation. They are servants of the same master, but engaged in a different operation. In the case of Rankin another principle was involved, as indeed, different principles must continu- ally arise, in consequence of the various involvements which are now every day taking place in the relation of master and servant. There it was the duty of the master to provide a certain superintendence of the work, and as that was not provided, he was found liable for the injury thence occurring. The injury was occasioned directly no doubt by some of the co-operatives of the man injured being away from the pit mouth, but their absence arose from the want of super- intendence. Here the pursuer libels, that it was the duty of Brassey to provide certain machinery, that the pursuer was a servant of Brassey, who was not in that department at all ; that it was no part of the pursuer's duty; but that on the contrary it was the duty of DIGEST OF DECIDED CASES. 1 6 1 the defender, or of others acting for him, with a view to the safety Gray v. of the pursuer, and of those engaged in the same operations, to see Brassey. that the proper machinery was provided, that he was entitled to rely ^^fo'^seJ^yaut on this being done, and that by reason of its not being done, in con- for injury sequence of Bras&ey^s failure of duty in this respect, he was injured, o^^ised by neg- N^ow that is a failure in a different department from that in which g^vante or ^^ the pursuer was engaged, and I think we have no decision in which defective ma- it is laid down, that where that is made out, the master shall not fee *'^''"*'"y' liable. Linioood v. Hathorn is a very instructive case, and there is a great deal in the observation of Lord Glenlee, that if the master is to be liable in every case, the work of the country could not go on. But ia that case it appears to me, the master was held free of liabdity on a ground altogether different from that which is pleaded here. That was a case where the Court was sitting in judgment on the evidence, and the question arose, if the cutting down of the very tree which caused the injury, had been ordered by the master, or was not contrary to his wishes. If it was not marked, the cutting down would have been contrary to his vnshes ; but that cotdd not be proved, be- cause the evidence was shut out by the persons who could speak to it being made parties to the action. I cannot agree with one of the Judges, that all the cases of liability in our law arise out of con- tract. I cannot go so far as that. But where persons are employed in different stations, and the duty of the master is to provide for the safety of each department, and injury arises to a person employed in one department in consequence of the master's failure in his duty, that is, where the statement is such as it is here, I think we are quite out of the case of Linwood. Nor is the case of Rankin here in point. That introduces quite a different question, — who is the master there is then the question, — where there are different occupa- tions, separating the parties into different callings. That was also the nature of the question in Richmond v. Russell, Macnee S; Co. In the present case, I hold the Summons to be relevant, and am for adhering to the Interlocutor of the Lord Ordinary. Lord Fullbbton. — I am of the same opinion. The defender's plea in law here is quite general and unqualified, (reads first plea). That goes very far, and would exclude almost every case of injury by fel- low-servants, on the ground of the pecuhar contract between the master and servant. Now take the case of a large master workman, or contractor, undertaking a job. He gives directions to a certain body of Ids workmen to proceed to some place at a certain distance to do that work. If he puts them into a waggon which turns out quite defective, and the residt is that the men are more or less in- jured, is there any ground for holding that the master would not be liable. I cannot see any principle on which that could be held. It just comes to this, that when a party chooses to treat his servants in the same way as passengers, there is no reason why the same remedy should not be competent to them as to passengers. Then, looking to the statement made in this case, I do not think we run any risk in granting an issue. I think there is much in the remark of your Lord- ship, that where persons employing servants in different kmds of L 162 DIGEST OF DECIDED CASES. Gray v. work, come to employ them in some operation in which their Brassey. work is all combined, there, may often be a difficulty in saying how lity to servant ^^^ *^® master will be liable for the injury occasioned by one servant for injury to another. But the present case avoids that difficulty, because the caused by neg- statement is, that the proprietors were bound to have waggons with servants, or Certain breaks. That is an allegation as to machinery, which it ought defective ma- to have been safe for the pursuer to use. And the summons proceeds chmery.. ^^ ^^^ effect, that the pursuer was called on to go upon a break, when another party, whose duty it was to see that the machinery was safe, had failed to do so. If it were to corn* out clearly before the jury, that this man, the pursuer, did something so rash as to go on a wag- gon, the insecurity of which stared him in the face, I do not know ■ what view the jury might take. But taking the case as it stands, I do not think we can refuse an issue. Lord Cdninghame. — I entirely concur in the opinions that have been delivered. While we shall at all times- be ready to receive in- struction from English practice, the present case belongs to a class, in which we are not entitled, of our own authority, to alter and re- verse the ancient grounds of liability between master and servant in Scotland. Although our Eeports for many years shew that masters have been held liable to all third parties, (without excepting feUow- servants,) suffering from the negligence and unskilfulness of other servants hired by the employer, followed up by the late case of Rankin v. DicJcson, in the Second Division, the books hardly shew the extent of the understanding in Scotland, as it is believed there is no man of common intelligence and experience in our affairs, who entertained a different opinion. Many industrious people may have relied on that security, and, at any rate, when servants in this country have suffered severe injury from the fault of another workman hired by the master, we are not entitled suddenly to abrogate the respon- sibility of the latter, existing at the date of their employment. The law of Scotland on this point has been long established and acted on, while this question is new in England, arising merely under an Act recently passed ; and 1 must, with perfect deference, remark, that the reasons assigned in the English cases for the distinction urged by the defender, do not appear to me to be altogether satisfactory or reasonable. At first I was moved by the plea of the defender here, that the pursuer's narrative in the summons shewed ex faeie that the injury libelled on was attributed to the gross carelessness of the pursues himself But I do not think that there is any room for that plea under the present summons as framed, or at least in the present stage of the process. The allegation, as it stands, is clearly relevant, and if not disproved it may infer damages. On the other hand, if it be shewn at the trial, that the injury was not attributable to the defender, but to the carelessness or want of caution of the pursuer himself, no issue is necessary to prove that, as the fact may be esstab- lished in answer to the pursuer's issue. The relevancy of that plea is settled in England by a series of cases past question — See Cattlin 8, Man, G. & S. 165 ; Eigby, 5 Wels., 240. DIGEST OF DECIDED CASES. 163 LoKD Ivory. — Substantially, I am of the same opinion as your Gray ». Lordship. I do not wish to pronounce any judgment with refer- Brassey. ence to the law of England, nor in any way to go beyond our owniHy'*to\erv^i;t law. At the same time, in our own law, I do not wish to lay down for injury anything like an abstract principle, and I confine myself entirely toff"^^'^ *>? "?^B- the circumstances of the present case, without entering into any con- Bryants" 0°'' sideration of what may be settled hereafter in other cases. My dif- defective ma- ficulty here is principally as to the form in which the matter comes ''^^''^'7' before us. I could have no difficulty in finding that there is rele- vant matter on record, but I have some diifioulty in adhering generally to this interlocutor, which repels the first plea of the defender. The interlocutor does not merely sustain the relevancy of the summons, it goes farther, for it negatives the defender's first plea in law, and that in respect of the decision in the other division. Now, I think both these findings unnecessary. My objection to thus repelliag the first plea, seeing it is to be taken in connection with the cautions expressed in your Lordship's opinion, may not be very material; but that plea, aa stated, is, as Lord Fullerton has said, broad, absolute and unqualified, and it is because it is unqualified, that I fear lest OUT repelling it in this general way may be used for a hurtful pur- pose. If by repelling that plea it is meant, that if a master in the choice of his servants, or machinery, is altogether itee from blame, he may still be liable for injury done, I can only say I am not in- clined to hold that. I rather agreQ with the views expressed by Lord Mackenzie in Sneddon v. Adie, Millar and Rankin, 16th June, 1849. That was a case of machinery, and Lord Mackenzie says: — ' If the master had done every thing he could to ensure sufficiency, ' I think there would be great difficulty ia holding him liable. I ' think there must be some culpa, however small. The principle ' cannot go very far, and the presumption undoubtedly is that there ' was blame.' If that is sound as regards machinery — if from some latent fault in machinery which the master has taken every possible pains to secure against, injury happens, the master is not liable, — then, as I read our law, the same principle applies in the case of ser- vants. If the master has done everything in his power to have piw- per servants, skilled in their department, such as that no prudence on his part could possibly have done more to guard against irregulari- ties in their after conduct, then I am not prepared to say he would be liable. Manyanalogies have been referred to in the courseof the argu- ment. I thinkthis rather a dangerous mode of argument, forinaU these cases there is some special principle to vHiich the liability is refer- able. One of the cases referred to as analogous was that of a carrier; but in his case his warranty is to deliver the goods safe which he receives. His contract is to deliver them safe, and it is on that ground that he is liable. Nor do I think it safe to go on the ana- logy of a man employing an agent to do something for him, and being liable for what is done by the agent as if done by himself That arises from the principle involved in that peculiar contract. So also in the case of tenancy. The obligation of the tenant is to return the subjects in good teaantable condition as he got them ; and if a fire 164 DIGEST Of decided cases. Gray v. takes place through his neglect, the tenant still remains liable, hut MaSer's^Uabi- ^^ ^ destruction, partial or total, takes place through some damnum lity 'to servant/'^^'^^fi) then in So far as the tenant is laid under an absolute obliga- for injury tion to restore, I should hold him not- liable. But in the case of UgenM oL°her ^^rvice, there is nothing inherent in the contract -which renders the servants, or master liable. It is a contract of locatto operarum, in which, as re- de'fectiTe ma- gards this matter, there is nothing to bind the parties to each other climery. in one way or another. Of course, if the master puts the servants in a particular position, he must protect them — he must so use his own as not to injure others. But then the analogy which naturally arises is that of the case of third parties, with whom the master has no contract whatever. If I am driving, or if my coachman is driv- ing through the streets, and some one is injured, I am liable. But that liability does not arise from any peculiarity in the contract of service, but is an equitable reparation, to a person who has suffered injury at my hand, or from one for whom I am responsible. That is the principle on which the cases of Linwood, and the others which have been cited, are to be explained, but that takes us a very little way. Looking to all these cases, I think there are in all of them, including the American one, and the case of Rankin, dicta which carry the doctriue of liabilily to an extreme length. I am not in- clined to go along with the views expressed in Rankin. They seem to go much on the supposed warranty in the contract. I think there is no such rule in the law of Scotland. I think there is no more such a rule in the case of a servant, than in the case of injury from defective machinery. To take another case. A man is not versans in illicito if he keep a watch-dog, and he is not liable for the dog injuring a person, if he has assured himself of its character. But if he knows that the dog has shewn vice, and neglects to give due notice, he is liable. I am not prepared to hold that the master would be any more Kable if the dog, instead of a stranger, were sud- denly to injure one of the servants. He is in his way a sort of fel- low-servant. So if my coach is upset and my coachman injured, I am not prepared to admit that because these are my horses T am lia- ble for the injury occasioned td the coachman by a sudden miscar- riage arising from fright. But then, as between servant and servant, how far is the liability of the master to go ? If I am to be liable for my servant without any culjia, why should T not be liable when my servant is acting criminally, or is seized with a sudden frenzy or weakness, in consequence of which he acts contrary to the way in which any other man would have acted. Have I warranted all my servants in that sort of way ? Certainly not. A damnum fatale is not a matter for which one is liable, and why not? Just because it is one of those things for which no prudence can provide. If, there- fore, I am to lay down any general doctrine, I should say with Lord Mackenzie, that if there is no culpa on the pEirt of the master, he is not liable. I hold with Lord Mackenzie, that culpa levis will do. The presumption of course wUl be against the master; but if it should come out before the jury that the master, in regard to his servants, had done all that man could do — that there was no culpa, DIGEST OF DECIDED CASES. 165 director indirect, on his part — all I would sayjust nowis,tliatIaninot Gkay v. prepared to hold that he would be liable if one of the servants were Bkassey. the cause of injury to another. Therefore, I am not prepared to ne-uty^to'^^gey^jj^t gative this defence in the absolute manner in which the Lord Ordin- for injury ary has done it. I think the defence iacludes that case. At the°^^^^^^^y^^^|^ same time I think, that with those cautions which your Lordship seryaiOs or has thrown out, and looking to the allegations made here, and to the defective ma- Law of Scotland as decided in similar cases^and we are not in the ""''^T- same position as in England, for we have many such cases in our books, and therefore are not obliged to go into what the English judges have looked to so much, the matter of general policy, nor in any way to go beyond the present case — perhaps no great danger may result. I should Hke, as I have said, to see out. of the note these words, " in respect of the decision in Rankin," because that ties me down to the extreme views throwm out in that case. I ob- ject also to repelling that first plea. Still, I am quite satisfied that your Loidship understands the repelling of that plea, as I would wish to do, and therefore I do not press my objection. My only fear is in regard to the use that may be made of it in future cases. LoED President. — I confess I am more afraid, if we do not repel it, that it may be said we adopt the law of England. R against Samuel Lowe, 3 Car. and K. 12S. «• ?;^„^^™^ JSTegligenee of Panel was an engineer, whose duty it was to manage a^^^^^'^J^P steam-engine at a coal-pit used to draw up miners ; and "ally, when the skip containing the men arrived on a level with the pit-mouth, his duty was to stop the windlass, so that the men might get out. One day he left the engine' in charge of an ignorant boy, who told him he could not man- age the engine, but the prisoner only threatened the boy if he did not do what he was ordered. The boy thereafter, in raising a skip, was unable to stop the engine, in conseqvience of which a miner was killed on the spot. It appeared that though any competent engineer could have rectified the error committed by the boy, the latter could not. In defence it was contended that a mere omission or neglect of duty could not render a man guilty of manslaughter. Lord Campbell, C. J.— I am clearly of opinion,, that a man may, by a neglect of duty, render himself liable to be convicted of manslaugh- ter, or even of murder. 1C6 DIGEST OF DECIDED CASES. Peachy w. 13th January 1853. — ^Peachy against Rowland. — EOWLAND. ■' oo T T Q1 ^n T> \ Owner not 22 L J. 81, (C. P,) liable for con- tractors com- -r\ „ -, 1-1 mitting a nuis- Defendants were builders who had erected some houses at tog oirta lawful Walhara Green, London, and contracted with one Ansell to contract. construct a drain from these houses to the main sewer under the public road. The earth had been improperly filled in after it was completed, and one night, there being no lamp or signal, plaintiff's cart drove against it, and he was injured. He sued the owners of the house for damages. At the trial, it appeared that one of the defendants had been on the spot four days before the accident, and had seen part of the drain covered in, as it was when the accident happened, but that neither of the defendants had any Control over, or anything to do with the way in which the earth was filled in. The judge then held that no ac- tion lay, and ordered a verdict for defendants. A motion was made for a new trial, on the ground of misdirection. The Court of Common Pleas held that no action lay. MaCle, J. — The question is, whether, upon the evidence taken altogether, the jury ought to have found for the plaintiff. We are not to look with extreme scrupulosity to see whether there may not have been some tittle of evidence for the jury, for, when considering a motion for a new trial, the Courts have said that, what is practi- cally no evidence, is absolutely no evidence. Now, here there was no public wrong ; and the question is. Did the defendants employ Ansell to do the work in the special manner in which he did it 1 Did they order him to commit a nuisance 1 I think not. Mitchell w. 27th Jftnuary 1853, — Mitchell against Crasweller. Master not 20 L. J., 237 C. P. liable for negli- gence of Ser- T^ /• n ) 111 -1 1 ■ vant when not Defendant s servant had been sent with goods in a cart duty ™*^ "^^ to the city, and on his return a friend of the driver asked him to drive him (the friend) home in the cart. The driver, in doing so, went out of his way, and also ran down plaintiffs wife, and seriously injured her, for which action was raised. Defendant pled that, as the driver was not at the time on his master's business, the master was not liable ; that the servant's duty was, in returning from the city, to DIGEST OF DECIDED CASES. 167 take the horse direct to its stable, and he had not defend- Mitchell ». ant's permission to go where he did; and therefore the MMtor'S"*' master could not be responsible for his nefflisence. The ''*''^'' *"'' "®sii- Ci J. jy n Til • 1 S 6 • -'"'^gence of ser- Oourt 01 Common Jr'leas gave judgment for the defendant, ™nt when not holding it well settled, that a master was not liable forduty!"^'*'''" a negligent servant, while not engaged on his master's business. 24th Mai-ch 1853. — Johnston against Shrewsbury and Johnston r. Birmingham Railway Co.— 22 L. J. (Ch.) 921, (Ch. Ap.) ^Tb'SminI- HAM Railway. The plaintiffs agreed with defendants, for a period ofiiabiiity ^m^ ten years, to keep up and repair aU their rolling stock, and'^*™*^®®' work all their trains, and provide workmen, &c. One clause provided that, if plaintiffs should not, within forty- eight hours after notice in writing from defendants, signed by the secretary of the Company, had been left at the works, ' obey the instructions given in such notice,' it should be lawful for defendants forthwith, by another notice, to determine the contract, and assume the custody of aU sheds and buildings, plant, engines, &c. ; then followed the terms on which the defendants might determine the con- tract, and the sum they were to pay the plaintiffs there- upon. One provision also was this : — ' Provided also ' that the contractors (plaintiffs) shall not be liable or answer- ' able for any loss, damage, or compensation, or other pay- ' ment recovered or recoverable from the Railway Company, ' (defendants), in respect of the death, or any damage or ' injury to any passengers or live stock, &c., except when ' caused by the neglect of the contractors or their servants ; ' but in such case the liability of the contractors shall not on ' any one occasion exceed the sum of £100, for or in respect ' of all the deaths, losses, damages, and injuries caused by ' and resulting from such accident.' The Company served a notice on the contractors to put into working order all the engines, carriages, &c. ; and a second notice having been given as to other things, the Company hinted that they intended to give the notice to determine the contract. The contractors then applied to 168 DIGEST OF DECIDED CASES. Johnston v. the Court for an injunction to prevent this, on the ground AND BiEMiNG-that it was impossible for them to do some of the things '^oM^'^'' required in less than three months. v\mtv^^^^ The Court of Chancery refused the injunction, and though damages. it was not necessary to decide the point, threw out an opi- nion that the contract was illegal EL Bruce, L. J. — There is a proviso here which appears to me rather extraordinary, (reads the clause as to £100 in case of acci- dents) ; the effect is, that the running and working of the trains, so deeply interesting to a large class of the Queen's suhjects, is com- mitted to a class of persons who may cause any number of deaths, and any amount of bodily injury to any number of persons, at the cost of XI 00, and no more. When the directors run and work the trains themselves, they are under a grave responsibility, and there is that kind of guarantee for care and attention ; in this case society loses the guarantee — a matter not to he overlooked in the case, when speaking of the agreement as to whether it is contrary to public policy. TuENEK, L. J. — On the legaUty of this contract I entertain doubts; but it is not on such a doubt that I concur in deciding the case. M'NEiLLf. 7th July, 1853. — M'Neill, Pursuer, against Wallace J^'^^m^i & Co., Befe-nders.—D. 1-5, p. 818, 25 Jur. p. 492. ter not liable if ceedinahazar- This was an action of damages for injury done the f^^f^P^ff"" pursuer, by the falling in of the roof of a "room," or exca- "seen danger." vation, in a coal pit belonging to the defenders, in which the pursuer was working. It appeared that the defenders im- dertook the propping up of the main roads through the pit, while it was the duty of the workmen to look to the prop- ping up of the room or excavation off the main roads. The wood for the latter purpose was kept at the pit mouth, and the rule and practice was, that the defenders shoidd keep a supply of wood at the pit-mouth, of which the workmen could avail themselves as they required it. The SberiflF Substitute assoilzied, in respect that the accident was occa- sioned by the pursuer's own neglect, in not propping the roof The Sheriff (Alison) altered, and found damages, on the ground that, although blame was attributable to both parties, the origin of the accident was in consequence of the neglect DIGEST OF DECIDED CASES. 169 of the defenders or their servants. In an advocation, the ii'NEnx ». Lord Ordinary reported the case, when the Court pronotinced coai pit— Mas- the following Interlocutor, assoilzieing the defenders : — '-^ter ^^^^J^'^'^'f ' the Interlocutor complained of, — Find in point of fact,ceeduiaha2ar- ' that it was the rule and practice of the colliery in which in face of a ' the pursuer was working, that the colliers should duly prop " ^®" '"^'^" ' and support the roofs of their several rooms, in order to ' prevent injuiy to themselves, or to the workings in the said ' mine ; that such use and practice was ftdly known to the ' pursuer, and thus it was his duty so to prop and support ' the roof of the room in which he was directed to work, ' after the same had been opened a certain length by another ' coIlier,in orderto preventdanger to himself and to the work- ' ings : Find, that he was warned the day before the acci- ' dent, that it would be dangerous to pi-oceedwith the work- ' ings of this room without propping the roof, and that in ' the knowledge of such danger, he sought for props on that ' day but could not find any : Find that next day, without ' obtaining props, or asking for the same if there were none ' at the pit-head, he proceeded to work farther in the room ' without obtaining props for the roof, to his own manifest ' risk and danger : Find that his duty was not to work ' when it was thus dangerous to do so, but to ask for and ' obtain pi-ops for the support of the roof if there were none ' at the pit-head, and that if none wei-e obtained and sup- ' plied to him, that he, being ready to fulfil his engagement, ' but entitled and bound not to work with danger to him- ' self at the workings, would have been entitled to his day's ' wages : Find, therefore, in point of law that the pursuer, ' on this state of the facts, is not entitled to claim damages ' in respect of the fall of the roof which he thus failed to ' support, and by which he was injured, from the coal-mas- • tprs, merely because the supply of wood was not famished ' to him on the morning of that day. Therefore assoihie ' the defenders from the conclusions of the libel, and decern, ' but find no expenses due to either of the parties.' Lord Justice Clebk. — I think that this case involves an impor- tant principle, and it is very material that the groimds of our judg- ment should be correctly stated and generallv known. The Court has on many occasions enforced the principle, that it 170 DIGEST OF DECIDED CASES. M'Neili. v. is the paramount duty of coal-masters, and persons engaged in such Wai-lace&Oo. undertakings, to provide in every vi^ay for the safety of the workmen tor*!!^' liable"^ « i" *heir employment against the risks and dangers which such em- workmen pro-ployment involves, and the Court has also held most justly, that cTOdmahazar-gm.]^ jjjg^g(;gj,f, must, by their precautions and arrangements, protect in face of a their workmen against the consequences of their own rashness and " seen danger." imprudence, — such workmen being proverbially reckless and careless of danger. But on the other hand, we must take care that the law is not pushed to such a length, as to encourage workmen, in their rashness and imprudent disregard of danger, when fully aware of such danger, and when it is their special duty in their employment to take the measures necessary to prevent such danger. Then what is tlie special case before the Court 1 The roofs of the rooms in which the coUiers work must be supported, and if not supported as the work- ings go on, and when the roof is left suddenly without support, then the danger of stuff falling from the roof upon the workmen is immi- nent. This is weU known to masters and servants, and the duty of both is to prevent that danger, — each in the way to be mentioned, but each by separate measures on their own part respectively. The masters of course, furnish the timber for props, — that is the rule. The props must also be placed at the pit-mouth, ready for the work- men to cut up and use. If not brought to the pit-mouth, it would be imi)Ossible to exi)ect that the men should be going about at all hours of night and day in all weather, to look for props and bring them from a distance after they come to the pit-mouth, in their working dress ready to descend. The workmen are entitled to find the props ready for them. It is no part of their service to bring the props to the pit-mouth, more than to obtain any other of the proper pit supplies. Now, that there is danger in working without the roof being propped is a fact certain. That props for the purpose must be supplied by the pursuer's master is also clear in this case, and pro- bably in all cases, without special bargain on the subject. Then the workmen are themselves to prop the roof with the wood found for them. They are to fit and properly place the props ; that is their business and duty. If the props are not properly fitted and placed, — if cut by the men of insufficient length, or not duly or adequately placed or secured, — then the fault is solely that of the workman ; and if the roof falls, it is the result of his own unskilfulness or want of attention. Thus the measure on which their safety depends, is to be taken by the workmen themselves. The case is not one in which they are using what is found and given to them as sufficient apd complete for their protection, in every sense without something on their part, and which without inquiry, they are to go on using per- haps too long ; nor are they entitled to rely on the safety of doing so, because they have machinery, ropes, &c., given to them as complete, and the master's duty being to inspect it, and keep it in a safe state and condition. On the contrary, this is a case in which the stops to be taken for their safety are to be taken by themsolvi's, and if they do not take these measures, they know that they are directly placing themselves in danger which they ought not to incur, and which it DIGEST OF DECIDED CASES. 171 IS not intended by the masters, that they should to any extent incur, M'Neill v. for their own duty is to prop the roof, and not to work without doing Wallace & 60. so. The roadways of the mine, on the other hand, the masters prop ter^io^t H^We « up, and make sufiacient by persons appointed for that purpose, and on -workmen pro- such being securely done, the workmen are entitled to rely. But the '=^'"^ ™ * hazar- roofs of their own rooms, the workmen -are to prop as they excavate fnTace^ott'"" coal, and they know the danger to be great if they do not so prop, "seen danger." His Lordship proceeds to state, that there being a seen danger in working for want of props, and that some of the ■witnesses having said that they were either obUged to run this risk or want their wages, he adds:— I wish it to be well and generally understood by the colliers, both for their own sake, and for the sake of the true interests of their employers, that such is not the alternative ; and that, if the proper suppUes for the safety of working are not ftimished by the masters, and ready for the men — they being at the pit ready to work in fulfilment of their engagement, but not having the supplies which the masters must furnish to enable them to carry on their work with safety — are entitled to their day's wages, although they should not, as they ought not, attempt to work to their own danger. This is a matter which it is most important the colliers should under- stand. Of course the Court do not mean that, if at the exact hour — say four or six in the morning — when the men come to the pit- mouth, they find that the wood required for props has not been sent, if asked for previously, stiU less if not asked for, they are en- titled to turn at once to the right-about — walk off — send no message for wood — nor look near the pit that day, and yet be entitled to their wages. No such abuse would be sanctioned. They must wait a reasonable time for the wood. They must distinctly apply to the proper party, if on the spot, to get it, and that if not got, they will leave the pit-head, as they cannot go down to work in rooms which have no proper supports ; or if the party is absent, as on this occasion, whose duty it was to have the supply ready, they must send for the supply if they Imnv that there is any belonging to the coalmaster at a convenient distance. If he has none ready at any reasonable distance, so that there is no prospect of any being got for the day's work, their right to return from the pit-head wiU, of course, very soon arise. But under such and similar limitations, to prevent pretexts being made to abstain from work, and yet claim wages, and taking the honest case which occurred here, that the further working in the room could not, without props, be carried on without imminent danger to life or limb, and that, on the other hand, no props were furnished by the master for the workmen to enable them to work in safety, then I apprehend it to be clear law, that after requiring props, and sending notice that they must be furnished, the workmen are not only en- titled, but bound to abstain from incurring danger, when they find 172 DIGEST OF DECIDED CASES. M'Neill v. that they had not the suppHes necessary to save them, from danger, Wallace & ^jj j ^j.^ entitled to their day's wages, and that they are not to blame Coal-'pitr^Mas-for 110 work being done. They are ready to work; they are not ter not liable If bound to work in the plain risk of danger ; the masters are bound ceed^a'hazar- ^° protect them against such risk ; that is the condition on which dous operation alone they are bound or engaged to work. in face of a It ig very important that this should be understood to be the law seen anger. ^^ ^^^j^ ^ ^^^^^ ^^^ course I exclude abusc) ; for then, the colliers will be led steadily and quietly to refuse to work when there is danger, until they have the means of preventing the danger; and the masters and their managers will also be led to attend much more pointedly to the supply and examination of the adequate and suit- able materials for ensuring the safety of the men while working. For the interests of both parties, for the safety of hfe, it is most important that the workmen should know that they have this prac- tical method of ensuring attention to the measures necessary for their safety — although, of course, any attempt to get up a flimsy and inadequate pretext for not working will be very strictly checked. I have said this is a case in which the men themselves were the parties, and the only parties, to take the measures necessary to provide for their own safety — the materials being furnished to them by the masters. Hence this case cannot be quoted as leading to the result, that in the ordinary circumstances which occur, the masters, if they have neglected their duty of providing for the safety of the work- men, have used too long insufficient machinery, or have not had their mines examined against fire-damp, and so forth, are reUeved from liability for damages merely because the men have been, as they always are, and are known to be, rash, imprudent, and reckless. On the contrary, that very tendency of ignorant men is only an addi- tional ground why the masters must protect them against the risks they so run, by aU the proper precautions which it is their duty and obligation to adopt; and that law I stated in various cases to juries. If the men directly disobey a positive order, either general or given at the time, that is another matter, and they must bear the con- sequences. But I take the case, say of explosion from fire-damp : — If the mine was not examined as it ought to have been, and accord- ing to practice, before the men began to work, the master, if an ex- plosion takes place, and life is lost, will not be free from liability civilly, or he or his manager criminally, merely because the men were imprudent in beginning to work before the examination was made, or in not inquiring whether the mine was so examined — un- less, indeed, there is some very pointed order or rule which they choose to break through. This case, then, will in no degree sanc- tion the inference, that the masters are to be free from responsibility merely because some imprudence and rashness has been exhibited on the part of the workmen— quite the reverse. But here the pur- suer ran into a ' seen danger,' when his duty even to his employer was not to work. On the other hand, he would not, in the circum- .stances proved, have lost his right to wages. Judgment must there- fore go for the advocators, but without expenses. DIGEST OF DECIDED CASES. 173 Lord Murray. — I consider it absolutely necessary to lay down M'Neilmj. i-luarly both the employers and the collier's duty. It is clear that Wallace & the master is liable for all the machinery, that it be sufficient, as Ooal-pi^-Mas- wbU as for the sufficiency of the pits themselves. It is unnecessary ter not liable if to go into the question, as to any failure of duty in the master in notoeediualmmr- having wood at the pit-mouth ; but I assume there was a failure, dous operation aud on that assumption, which the evidence I think justifies, I still i" ^^°^ of ^ think the master's failure gave the workman no right to proceed at"^^®" danger." the hazard either of himself or of the works. The master's failure was of a secondary nature altogether, and the pursuer transgressed in face of warning. I hold that it is a clear duty, on the part of colliers, not to work where the pit is unsafe owing to failure in duty on the paxt of the tenant, and they will be entitled to their wages though they do not work. 7th November 1853. — Ellis agaiast Sheffield Gas Ellisw. Shef- CoNSUMEE's Co.— 22 L. T. 84, (Q. B.) coXMEBtco Company held , liable for inju- Defendants employed a contractor to lay their gas-pipes rfea sustained in the streets of Sheffield, and in consequence of stones and operafiona of a earth left on the street, and no sufficient light by night, °™*^^°j^^j;jjj™ the plaintiff fell and was injured. He sued the Gas Com-jvork was in pany for damages. Defendants contended that they were an illegal act. not liable, and that if any one was, it was the contractor. Even if the work done was illegal, that they were not liable by cjvil action, whether they were so criminally or not. The Queen's Bench held the Gas Company liable. Lord Campbell, C. J. — The proposition is quite untenable, that where there is a contractor employed to do the work, the person who employs the contractor can in no case be liable for damage arising from the performance of the work. It seems to me that if the con- tractor does what he is ordered to do, the act of the employed is the act of the employer. I approve of the decision in Knight v. Fux, 5 Exch. 721; Peach i/ v. Rmoland ; and Overton y. Freeman; be- cause, in these cases nothing was ordered to be done but what the employer had a right to order to be done ; and there being a contract to do what was lawful, the employer was properly held not to be liable for what was done negligently in relation to the contract. The relation of master and servant does not exist in such cases. But, in the pre- sent case, the employer had employed the contractor to do an illegal act, which was the cause of the damage that aiose, and the very ground of the present action. The defendants had no right to lay open the streets of Sheffield to put down their pipes, and the accident arose from the stones being talcen up according to their orders. This is a case where a person is employed to do what is unlawful, 174 DIGEST OF DECIDED CASES, Ellis v. Siikf- and of loss arising from doing that unlawful act. There is therefore riELD Gas i^oth damnum and injuria; and the defendants having employed the OosrsUMKKsCo ii.ijj.T.iviij?i.i.i Company held contractor to do the act, are liable for the loss. liable for inju- ries sustained through the operations of a reTpeotlhatthe l^th Nov. 1853. — Wallis against Manchester and work was in LINCOLNSHIRE RAILWAY Co. (C. P.) 22 L. T,, 286. furtherance of \ / ' an illegal act. Wallis v. Two horses belonging to plaintiff were grazing in his SHErriELrT & park, through which a highway passed, having gates at each Railway Co"" end of the park. By some negligence on the part of a Damage by im- traveller One of the gates was left open, and the horses orraUway!"'"^ strayed through it, and went into the station yard of the railway, close at hand. One of the railway servants turned them out again into the highway. They had afterwards, however, again entered the station yard, and were acciden- tally locked in. They theli went through an opening in the fence separating the station yard from the line of rail- way, and got upon the Hne, where they were killed by a goods train. The plaintiff brought an action for their value against the Eailway Company, alleging that the loss was owing to the Company's negligence in leaving their station yard gate open, and also in leaving an opening in the fence se- parating the yard from the railway. The facts proved were, that it was owing to no fault of the Company that the horses got on the line of railway. The Railway Clauses Consolidation Act, 8 and 9 Vict., c. 20, sect. 68, provides, ' that the Company shaU make, and ' at all times thereafter maintain, the following works, for ' the accommodation of the owners and occupiers of lands ' adjoining thereto ; that is to say, amongst other things, ' sufficient posts and rails, hedges, ditches, mounds, or other ' fences, for separating the land taken for the use of the ' railway from the adjoining lands not taken, and protecting ' such lands from trespass, or the cattle of the owners or ' occupiers thereof from straying there by reason of the rail- ' way ; together with the necessary gates, made to open to- ' wards the adjoining lands, and not towards the railway, ' and all necessary stiles.' There is an identical section in the Scotch Act, 8 and 9 Vict., c. 33, .sect. 60. DIGEST OF DECIDED CASES. 175 Tlie Court of Common Pleas held the Company not liable. Wallb v. T ri T n i • 1 Manchester, JBRvis, U J. — Certainly this section makes a very inadeauate Sheffield, & provision for the protection of the pubHc, where a railway runs along- ^^^ZTn^ side a public highway ; but, nevertheless, it is clear that this clause Damage by im- was intended to apply to such a case as this ; for if not, there is noP'"^«"=* fencing section which casts the obKgation to fence a railway in such cases. '"''^°'''" The highway, therefore, is to be considered to be adjoining land not taken, and the same construction must be put upon the same words, whether that adjoining land be a public highway or a private close (park). What, then, is the nature of the obligation cast upon the railway by this section? They are bound to fence, so as to keep the cattle of the owners and occupiers of adjoining lands not taken from straying on to the railway. Ricketts v. East and West India Docks and B. E. Co., 21 L. J. (C. P.) 201, has already determined that the obligation of the Eailway Company by this section is the same as it would have been at common law, if they had been bound by pre- • scription to repair the fence ; in other words, they are only bound to keep up the fences against the cattle of the owners and occupiers of the adjoining lands. Were, then, the cattle of the plaintiff, at the time they were killed, the cattle of the owners and occupiers of the adjoining lands? We think they were not ; and the case of Dovas- ton y. Payne, 2 H. Bl. 527, appears to us to decide that question. Whilst the cattle of the plaintiffs were straying on the road, the plaintiffs were not occupying the road, and therefore there was no obligation upon the Company to maintain a fence against them. If, then, there was no obligation to maintain a fence against the plaintiff's cattle, the Company were guilty of no wrong in omitting to do so. There is no complaint that the railway was conducted improperly ; the only complaint is, that the fence was not sufficient. The Legis- lature, with a full knowledge of the danger of railways, has cast on them a limited obligation only ; and we cannpt enlarge it merely because the public safety may be endangered. This distinguishes the present case from Fawcett v. York and North Midland Railway Co., 20 L. J. (Q. B.) 222; Bird v. Holhrook, 5 Bing. 626; Barnes V. Ward, 19 L. J. (C. P.) 195. 24th Nov. 1853. — Scrip against Eastern Countie,s softip».EAs- Railwat Co.— 23 L. J. (Exch.) 23. R^fLw?™ Non-liability of Company for Plaintiff was a railway guard on the defendants line, injuries to a His duties were to attach goods carriages to the engine, and despatch them to a particular station. He was occasionally assisted by a porter. On 5th July 1852, it was necessary to shift the carriages from one line to another, and within a limited time, in order to prevent a collision with a down ] 76 DIGEST OF DECIDED CASES. ScKip V. Eas- passenger train which would shortly become due. While he TERnGoUKTIES . „ „,, . 1 ,, . i,,l/. Railway Co. was in pertormance 01 this work, and ior want, as he stated, ot Company^ for* ^° additional person to assist him, the engine started, and he injuries to a -vyas thrown on the rails, and his arm was crushed, and had to be amputated. He had been three months in the company's service as guard. He sued the Company for damages, alleging that it was the duty of defendants to take all due precautions to prevent unnecessary danger ; and that, in con- sequence of their neglecting to assign some one to assist him in the present instance, he had met with the accident. The Company contended that, as he had voluntarily un- dertaken to attach the trucks to the engine without any additional assistance, the Company could not be liable. On the other hand, plaintiff contended it was the duty of the Company to keep a sufficient number of hands, and tried to distinguish the case from Priestly v. Fowler, Wigmore v. Jay, and Hutchinson v. York, Newcastle Railway Go. Tlie Court of Exchequer held no liability. Parke, B.^ — If his duties were more than he could perform, he ought not to have accepted the service. The defendants are not bound to keep 20 servants. They are to be the judges of the num- ber. They are, indeed, bound to see that their servants are persons of proper care and skill. The plaintiff here goes into the service, and willingly incurs the danger. Aldeeson, B. — The jury are not to be the judges of the sufficiency of the number of servants a man keeps. The plaintiff stayed in this situation three months, without having an under guard to assist him, and without making any objection. MuiRorPA- i7th December 1853. — Mrs MaryMuir or Pateeson and Wallace &Co. Others, Pursuers, against Wallace & Co., Defenders. — l^^cj°oi D. 16, p. 243. 26 Jur., p. 123. roof of coal- mine — with- ... , . _ drawing case Robert Paterson, while working in a coal-pit at Easter- rom jury. jjousc, the property, and in the occupancy of the defenders, was killed on 1st December 1851, by the falling of a stone from the roof of the pit. The question of liability was raised in an action of damages at the instance of the widow and children. The issue put to trial was, " Whether the deceased Robert Paterson, while engaged in the service of DIGEST OF DECIDED CASES. 177 ' the defenders, as a miner in the said pit, sustained injuries *^"™ ""^ ^^' ' to the person, which shortly afterwards caused his death ;wScE&bo. • and whether the said injuries were occasioned by reason s^uffiSyrf ' of the unsafe and insufficient condition of the road or main-''"."* of coal- ' road of the said pit, in which the said deceased was engaged drawing case ' as aforesaid, and of the roof, or part of the roof, of the said ^™'" ^'"'^' ' road or mainroad, and by the fault, negligence, or unskilful- ' ness of the defenders, or of any person or persons for whom ' they are responsible, to the loss, injury, and damage of the ' pursuers.' At the trial, and after tlie proof had been led, the Lord Justice- Clerk told the Jury that, on the evidence adduced, the pursuers could not recover damages. The counsel for the pursuers took exception to this charge, and farther re- quested the Judge to state to the Jury, that if the defen- ders' manager failed in his duty in timeously directing the stone in question to be removed, it would afford no defence 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 consequence of the directions of the roadsman, the defenders are responsible for such directions. This direction the Judge declined to give. The Jury found for the defenders. At advising the bill of exceptions — The Lord Justicb-Cleek. — In this case I understand that the exception to the direction I gave is rested upon both grounds, viz. : — 1. That the view of the facts on which the direction was given was erroneous ; and, 2. The direction is in point of law erroneous, even if the view taken of the facts is correct. At the trial, I thought the right to recover excluded hy two simple facts. The deceased was not working under the stone, and if he had con- tinued even working in taking out coal, and it had fallen, it would have fallen in a lower level hy several yards from him. But when the first of the roadsmen arrived, he told the deceased that they were come to remove the stone, which the deceased said he was glad at. But then, unhappily, he did not stop till the stone was removed, nor did he continue working higher up, and free from the stone as before, in taking out- coal. He had taken out nearly a hutchful, and the coal taken out was then pressed down the level and nearer to the stone. And to prevent the coal being dirtied by £Sny rubbish, and to save the trouble of afterwards separating such rubbish from the coal, he and the roadsman for his benefit combined in this unfor- tunate arrangement — viz., that a hutch should be brought up to be M 17a DIGEST OF DECIDED CASES. MuiR or Pa- TERSON V. Wallace &Co.' Liability for sufficiency of I'oof of coal- mine — with- drawing case from jury. filled by the coal before they took down the stone. This was done for the benefit, small as it might be, of the deceased, and was a plan among the two sets of workmen, the deceased and his son and the two roadsmen. The result of this was, that, as the coals when taken had been thrown down the level nearer to the stone, and the hutch brought up the mainroad towards the coals, the hutch was thus brought under the stone, and the man, in going down to fill the hutch, was thus brought into danger, which in his proper place he, had not before run. Now, the two facts on which I proceeded, as raising in law a sufficient defence against the right to recover, were : — 1st, That the foreman in charge had given orders to take down the stone, and that the men arrived at the spot immediately with their tools to take it down before the accident. 2d, That if the deceased had stopped working until the stone was removed, knowing that the stone ought to he taken down, and having asked that it should be' removed, he could not have suffered. But he, by an arrangement with the roadsman, began a new proceeding for his own benefit; and, instead of letting the operation of taking down the stone proceed, actually brought himself thereby directly under the stone, and so into the very danger which he had desired he should be protected against, and this for his own apparent benefit, and thereby stopping the operation directed by the foreman of taking down the stone. We have had occasion to lay down the doctrine, that mere rash- ness on the part of a workman in trusting too long to the existing, state of things will not exclude a claim for reparation if the employer has neglected his duty in not timeously providing for the safety of the men, or if his general instructions are neglected, by neglect on the part of other servants and the want of inspectors over them. But then, the facts here, if my view of them is correct, raise a very dif- ferent question, and bring in the fault of the man injured as the true cause of the injury. Hence, I think, on the state of the facts which I have stated, those in his right cannot recover. Indeed, if such is the state of the facts, the only ground of objection urged against the direction was, that, nevertheless the masters were responsible for the roadsmen going into the delay for the purpose of the deceased fillLng his hutch. But that is plainly not a sound application of the doctrine we have laid down, as to the responsibility of the employers for the fault of feUow-workmen. Here the deceased was not entitled to bring himself below the stone at all, after desiring it to be taken down, and after the men were there to take it down, much less to do so for his own supposed benefit or ease, and if they, as fellow- work- men, stopped to let him go on, he was the party to blame, so far as relates to the place and position into .which he chose to bring him- self from that motive ; and, if he had not attempted to fill his hutch, there would have been no accident. Both as to the exception to the direction, and as to the proposition I was asked to adopt, the short' answer is, the man wasjiilled by his own rashness in bringing him- self directly into the known danger, at the very moment when the men were about to remove the cause of danger. Lord Cockburn. — My difficulty relates to the exception to the DIGEST OF DECIDED CASES. 179 direction that, in the evidence, the pursuers could not recover Muir or Pa- ilamages. I concur in that result, but not without considerable -^(rALuicE&Co. difficulty. That is a result -which depended entirely on the view Liability for which the Jury might take on the evidence. Now here the case ■v\ras^"®''^|''<'J' "J withdrawn firom the Jury. There are cases in which it is quite plain mine— with- that the facts proved cannot entitle a pursuer to a verdict, and in drawing case which, accordingly, the Jury may be at once directed to find for the "" ^^^^' defender. But when that result is reached by a complex view of a great variety of particulars, of which the Jury might have taken a different view, then the soundness of such a direction seems more than doubtful. I agree in thinking that this man was killed by his own negligence. But what if the Jury took a different view ? It is a dehcate thing, I say, that the Judge is not to allow such a case to go to the Jury. But I concur in the result of your Lordship's opinion on two grounds. 1. As a Juryman, I would not have given damages. 2. Because I have the highest confidence in the impressions made on the mind of the Judge by the evidence at the trial — impressions which are quite superior to any which we may have from the consideration of the Judge's notes of that evidence. LoED MuEEAT coucurred, observing that it was a case of very great difficulty. — Exceptions disallowed. The pursuers appealed to the House of Lords, maintain- ing, 1st, That it was for the Jury alone to determine what were the facts proved by the evidence ; 2d, Because it was incompetent for the Judge, on any view which he might himself take of the state of the facts, to withdraw the case from their consideration ; and, 3d, That the assumption by the Judge was not supported by the evidence. LoED ChancblIiOE. — My Lords, this action was brought upon this ground, that this unfortunate man had come by Ms death by reason of the masters, through their agents having carelessly left a very large stone in the roof of a mine in so dangerous a position that the workman, when engaged in digging out the coal, owing to their negligence, lost his life. There being no doubt that the poor man did lose his life by this great stone falling upon him, which killed him on the spot, in order to recover damages the family must esta- blish two propositions. First of all, they must shew that that stone was in a position in which it was dangerous, owing to the neghgence of the master, and next, that the workman whose life was forfeited lost it owing to that negligence, and not to his own rashness. It is said that, by the law of Scotland, the master is bound to provide against the rashness of the workmen, and I see, in one of the learned Judge's opinions, an expression which might give countenance to such a notion. That is evidently a proposition which, as matter of law, can never be sustained. In England, and in Scot]a,nd, and in every civihzed country, a party who rushes into danger himself can- not say, " that is owing to your negligence." As a question of fact, 180 DIGEST OF DECiJJKD CASES. MojB or Pa- TEESOa f . Wali-aceACo. Liability for snfliciency of roof of a coal- mine — with- drawing case from jury. it may very well be laid down tliat tliat wliich wouM be negligence, and reasotiably treated a» rashneHB in other p(jr8on«, may n}dtm was the under-ground manager, and amongst other statements it seems that, first of aD, tliere ha^l been some dispute about not going to work that day — the manager advised tliem to come back — they did come back, and Paterson amongst them — they all pomUA to the roof as being in a very dangerous condition, paiiicular-ly that stone. Snedden said, ' I was afraid of snow when none fell,' llie jury would clearly understand from that, or at least they might understand ftom it, that he meant to say, — ' You are calling out before you are ' hurt,' or some expression ctf that sort — tli/^e is no reason to apj^re- hend anything ; you are crying out before there is any real danger. Then Paterson, the deceased, remonstrated and said, ' It is danger- ' ous.' Mr. Bovill says he means tli* roof generally — the roof gener- ally included the stone. Tlie other side said it meant tlie stone in question ; but whichever way that is, one way or the oth»a-, th«y say it is dangerous. To which the manager said, ' Why, lifAAn, y(m ' might make your bed below it,' evidently roeaning to say, there is no danger, lliat is the way the matter is intnxlneed, and srftcrwards there is &rther remonstrances, and Sned'len agrees that it shall be removed, and sends down persons to remove it. In the meantime Paterson goes on working, and not waiting till the stone is removed. He gets a hutch or load of coal, and passing nwiiii- the stone he is nnfortunately killed, by the stone felling at that very moment, just before they were going to remove it. Now, my Lords, it is not for- yonr Lordships, or for the Court below, to say what would be th e coneltisions at which the jnry would arrive, or 'mght to arrive, uj>on that e\iden'>i Upon the two propon'tion,% all tliat your Lordships have to say in, or the Court below had to nay was : Is there imAnam thai may by possibility justly lead them to a conclusion in fevour of the phdntilb upon both these jiropositioris '/ Is there evidence which might rea- sonably lead them to wmie to a conelnsion, that this stone was there improperly, owing to the negligence of the master ? And, neoondly, that there was no extraordinary rashn«!« in Paterson's carrying his load of coals under it before it was remflved? Then there was evi- dence of the -*oxie being dangerously left, or rather improperiy left, which is, unfortunately, too clear, from the feet that it did feU and kill one of the workmen^ There is abundance of evidence on that sulgecL The only other evidence, therelbre, wliich it was necesaaiy for the pfeintiffis to hty before the jury was, that the tft/nie felling upon him and killing him was the re«ult of his feirly trusting that DIGEST OF DECIDED CASES. 181 all was safe, and not of his own rashness in going where he had been Mcik or Pa- warned not to go. My Lords, it is suflScient to say upon that suh- ■™^°'''r- ject, that there is a conflict of testimony. Lord Cockburn remarked, Liability for that the Lord Justice-Clerk, who tried the case, had the benefit of sufficiency of seeing the demeanour of the witnesses — he clearly had. But how™?^"^ ^-tif^" do we know that, from the demeanour of tlie witnesses, the jury dia-wing case might not have come to the conclusion that aU the evidence was from jury, concocted evidence — that it was not to be trusted? If the witnesses said anything about rashness on the part of Paterson, the jury might have come to the conclusion that Sneddon had told him there was no real danger, but he would have it removed to satisfy all scruples. That is the conclusion to which the jury might have arri^■Bd — ^there was plenty of evidence of it — there vvas that evidence to which I have already adverted, and if there was any evidence that is quite sufficient. If I were asked upon this case to come to a conclusion upon this written evidence, whether there was rashness or not, I believe the evidence in favour of rashness on the part of Paterson strongly preponderates. I am not the jury, and your Lordships now representing the Court are not the jury. The question is, What ought to have been said by the Judge to the jury after this evidence had been given I To my mind it is perfectly clear, that it was liis duty to point out to them the evidence which bore upon these two propositions— whether there had been a want of ttmeous removal, as they call it, on the part of the master? If you are satisfied that there was want of timeous removal, then are you satisfied that Pater- son came to his death, not owing to his own extraordinary rashness, but owing to his having so implicitly relied upon the assurances which wei-e given to him by Snedden. That is the direction which ought to have been given, tlien whichever way the jury had found, probably there would have been nothing upon the face of the record to lead to the conclusion that the evidence was wrong either one way or the other. If tiiere was anything wrong it would have been set aside by a new trial, and not by a bill of exceptions. It appears to mCj therefore, that that is the direction whidi ought to have been given. My Ix)rds, it appears to me, upon the whole, with all defer- ence to the learned Judges, quite clear that they have misunderstood the province of a Ju<]^ in a trial of this sort He ought to have laid down to the jury what were the propositions, in point of fact, which the pursuers ought to have found, in order to entitle them to a verdict That consisted in two fects — ^fiist, whether there had been n^ligence— next, if the accident was the result of that negligence, and not the result of unjustifiable rashness. If they were satisfied on both of these points, the pursuers were entitled to recover. If the pursuers fidled to prove either of these points, the defenders were entitled to a verdict. He might have added his opinion, that the weight of evidence was irresistibly strong upon the part of the defenders, but that, after all, would be a question for them to decide. Lord Brougham.— I take exactly the same view of this case as my noble and learned fifiend. No doubt, if I were to ask for a con- firmation of mv opinion, that there was miscarriage in the Court be- 182 DIGEST OF DECIDED CASES. sufficiency of roof of a coal- mine — with^ drawing case from jury. Mum or Pa- low, I should scarcely go farther than what fell from a very able and TEBsoN ». learned Judge in deciding on the case — Lord Cockburn. It is im- Liability for possible to read Lord Cockbum's statement without seeing that this was a case which ought to have been left to a jury. I think if Lord Cockburn had applied his usual sagacity and acuteness to the whole matter, he must have seen that the very view which he took of it rendered it a case where the Judge ought not to have withdrawn the matter from the jury. My Lords, as it is the opinion of my noble and learned friend that this interlocutor overruling the exceptions should be reversed, I am loth to give any opinion on the facts of the case, because it must go to a new trial ; but no person can read the evidence of Bernard O'lfeil, together with the rest of the evi- dence, and not have a very strong opinion as to the delay which was interposed by the Company, or by Snedden, the manager of the Company, for whom the Company, undoubtedly, are responsible in this respect, though we, as my noble and learned friend so jnstly said, know too little of what a roadsman is, to accurately ascertain how far the Company are responsible for what the roadsman did or omitted to do. Snedden was the manager of the Company, and, beyond all doubt, for his negligence the Company are liable. It is clear to me, on reading this evidence, that he did not take proper precautions with respect to the stone ; that Bernard O'Neil, who had got directions, had not got such directions as to make him speedily remove it. He says : ' I did not go to take it down ; I got an empty hutch for him ' (Paterson), and both went in together. He yoked to hll the hutch ' and take away coals — I told him to do so first — then, when filled, ' I intended to take down the stone, but it fell first.' It is quite clear that they had not seen the danger, as appears from what Sned- den said to Paterson, in a right point of view : that what Snedden observed with respect to Paterson making his bed, did not apply to that stone in particular — it applied to the whole roof They felt a great deal too much confidence in the roof to make those give the directions which they ought to have given. His Lordship said he hoped what was said would induce the defenders to avoid a new trial, by an offer of compromise to the appellants. Interlocutors reversed and case remitted, with a declaration. A second trial took place on 12th January 1855, before the Lord Justice Clerk, on the same issue as formerly, and the jury again found for the defenders. AbiUof exception was taken by the pursuer to the law laid down hj the Judge at the trial, and a motion made for a rule to shew cause why the verdict should not be set aside as against evidence. The pursuer contended for a direction in point of law, that if it was Snedden's duty to have the stone re- moved, and if Paterson was working in course of his em- ployment for that day with the consent, or on the orders of the defenders' manager, it was immaterial that he, Paterson, DIGKST Oil' niOOiniOl) CAHlOB, 183 might hiivo i-eiwon t.o bdiiwoor Himiiect the jilaco to bocliui- MuiuoiPa- gorous. But the Lord Justice Cllork referred tliis diroctioii.WAi.LAoii&bo. for t\w iiu])ortaji(io of his knowiiiff tho place to be dangerous, i^jjlj'^'jf^y'',; (lii|)oii(Ui(l oil tlio (iii)|ioiu'iuioo and extent of the danger at™"'!^"""'^'- the tiuio, and the way inwliich that diuifforwaBat tlie tiniodiawinniiftso l)rou^'ht beforo him, whether for iiiHta,noB by directions to'"""'"'^' Htop woi'k on aooount of the clangor, until the loose stones wore roniovod, Tho Court, (on 7tli March laur), D. 17. p. (I-2.S,) diml- loifi'd the oxroptioii. Lotto MuuRAY,— ir Siiodddii ullowiid Patersou to work whoro it ' \vm diuij,'»M'iiii.^ to woi'k, \w vviw doing wrong, iiiid subjecting his ' iuiihUii' 1,0 a (iliiiiii (if diuuiigcs, who ia \iahh for his soiTant'a nogloot ' wluui an ticcidcmi (nuuns IVoni luiy known danger, or insuffidonoy ivf ' l.iu< works. lUit 1 ciinnot go tlio l('iiji;t.li of siiying, thiit. il is alto- ' givtluM- ininial.iM'iul wluitluir tho workman hiuisoU' was not nwarc of ' tlio (^xisl.nn^lo of dangov, and rashly exposed himself to it. Though ' tho iniiHlinr i.s ivaponnibli^, thero niny lui such iniprojiur and rocklos.i ' ponduiili on tlu^ paH. oi' l,h(( wovknian in oxposing liinisolt' to danger ' as nuiy I'liliiwn iJio master IVoni liability fi'oni tla* consequences of ' an aooidi>ntr. If l.ho vvovka iiro not ai\i'o, llie nmsl.i'r is exposing his ' workmen to u iitn'il which ho hos no right to do ; but Ihero is also ' a duty on llio pni'l. of tlu^ workmen to («ivo oare of themselves,' Oji tho motion for a rule to show cause why tho verdict should not bo sot usidi^ as contmvy to (\vid(moo, tlui Court set aside tho verdict, bordn Murray and Ciowiiu boing of thi.s opinion. 'I'ho Lord Justioo i'UH'k, (••oiitra. l-ord Wood alwiMil. Tho rule was made absolute for a now trial on pavuiouli of i>rovioua oxjiousoa. A third trial took place at the Glasgow Spring Circuit, botbro Lord I landyHido, wiuin the jury returned a verdict for the pursuer. Djinuvgi^s X26. This vordiot was applied by tho Court, a.nd the point of oxpcnsea of tho whole pro- oootlings disposed of on 2"2nd Juno IN.').'). D, 17, p. 1)82. 18th .Ian. 18.'") 4. — I'ouou against Stkku — (Q. B.,) rm.ou <•. •2,'2 L. T., 271. Whothai-owuoj liable for da iniigHis oiiuantl The plaintiff sued for daiungos against the owner of thete^'^nsoawoi^^ ship 'Persian,' with whom bo agreed to serve on boai'dfrom— and want «t Knglaud to Calcutta: — on two gi"oui\ds,- - Ist. Because the boM^i"'" "" dofendor so ut^gligontly, improperly, and insuHioiently tHlui|)p(>d and titted said ship, that,siio wn,s uusoaworthy and nnlit for tho voya^'o, and that thereby, and by reason of tho 184 DIGEST OF DECIDED CASES. Couch v. yfei, the plaintiflF was unable to sleep in his hammock, and Whetherownefbecame sick and ill and suffered greatly in his health. magL *STiir2nd. The defendant had neglected to provide and keep on by unseawor- board a Sufficient supply- of medicines suitable for the voyage, thmesBof asmp rr j i ii —and want of and that by reason thereof, plaintiff was prevented from board.™^ °" being cured of his sickness, and suffered great pain. The defendant denied the relevancy of both grounds. The Court sustained the objection as regarded the first, but held the second count relevant. LoBD Campbell, C. J. — As to the first charge, it seems to me that this declaration does not disclose any contract or duty, the breach of which is the foundation of the complaint therein, For anything that appears to the contrary, the defendant was entirely ignorant of any defects in the ship, and the plaintiff may have ex- amined the ship, and may have become aware of its condition before the Voyage commenced. Moreover, if both parties were aware that the ship Was unseaworthy, it might have been the intention of the parties, that in consideration of having, to undergo greater hardship, the plaintiff should receive higher wages. That being so, and there being no scienter (averment that defendant knew of the unseaworthi- ness,) alleging that the defendant knew of any defect in the ship, or any personal blame imputed to the defendant, the defendant is not liable. If otherwise he would be liable to an action at the suit of every seaman who was on board, if, while the ship was going out at Plymouth Sound, a bolt had started, or through any act of negli- gence, the ship had not been seaworthy, within the strict meaning of that term in a policy of insurance. It is admitted, that up to this time there has been no action of this nature, that it is one of the first impression. Even the dicta of the Judges in Gibson v. Small, 21 L. T., 240, do not go the length of asserting, that a ship for the pur- pose of a contract of service, must be absolutely seaworthy, as it must Upon an undertaking of a policy of insurance. The authorities so far as they exist are the other way. Whether the services of a party are engaged in a house or in a ship the obligatita is the same. On the second point, his Lordship held that the plaintiff did not allege any duty on the part of the defendant to supply medicines for the use of the ship's company ; but he relied upon the obligation cast upon the owner by 7 and 8 Vict, c. 112, sect. 18, which enacts^ 'That every ship navigating between the United Kingdom, and any ' place out ai the same, shall have, and keep constantly on board • a sufficient supply of medicine and medicaments suitable to acci- ' dents and diseases arising on sea- voyages in accordance with a scale ' assigned by the Admiralty, (and now by the Board of Trade, 13 and ' 14 Yict., c. 93, sect. 64 ;) and in case any default shall be made in ' providing and keeping such medicines, &c., the owner of the ship ' shall incur a penalty of £20 for each and every default' And by DIGEST OF DECIDED CASES. 185 seot. 62, the penalties may be recovered at the suit of any person, Couch v. and when recovered, shall be applied and paid, a part to the informer, -^^^ ^J^^^^' and the remainder to the Seaman's Hospital Society. Were it notuabie for da- for the penalty to which the owner of the ship is subjected, it seems mages caused clear that the action would be maintainable. The enactment pro- j^j^g"g^®*^g^jp vides a benefit for the seaman, and accordiag to the plaintiff's alle-— and want of gation the defendant has violated that enactment, and thereby the^edioine on plaintiff, being a seaman on board, was deprived of that benefit, and °^^ ' his health has been injured. The general rule is, wherever a man suffers temporal loss or damage by the wrong of another, he may have an action of damages. Now, no authority has been cited to us, nor are we able to find any in which it has been held, that in such a case as the present, the common law right to maintain an action in respect of special damage resulting from the breach of a public duty, whether such duty exists at common law, or is created by sta- tute, is taken away by reason of a penalty recoverable by the common informer being annexed, as the punishment for non-peiformance of the public duty. In the present case, if the statute had prescribed a particular mode by which the person sustaining actual damage, by reason of a breach of the duty imposed by statixte, was to receive compensation, undoubtedly that mode only could be adopted. But the statute has made no provision for compensation to persons sus- taining special damage by reason of a breach of duty prescribed by the Act ; nor are there any words taking away the right the injured party would have at common law to sustain an action for special damage arising from the breach of duty, the penalty given by the statute being applicable only to a public wrong, and not to private injuries. We think, therefore, the action here is sustainable. 30th Jan. 1854. — Dansey against Eichakdson.— 1 3 L. J. e?chakdson. - (Q. B.,) 217. Liabilityonem- '•^ '/ ployer for neg- ligence of eer- Defendant kept a boarding-house, and plaintiff had boarded ^"^ in the house for some weeks. A butler and page were kept to go errands for the boarders, carry luggage, ,&c. Plaintiff was about to leave the house, and her luggage had been carried down to the hall door to be ready, when plaintiff sent the butler out for some biscuits. The butler left the front door a-jar, and while absent, a thief took the oppor- tunity of carrying off a valuable dressing case. The plaintiff sued the boarding-house keeper for the loss. The Judge at the trial told the jury that defendant was not bouiid to take more care of her house and things in it than a prudent, owner would, and it was for them to say if defendant shewed 186 DIGEST OF DECIDED CASES. Dansey v. any negligence in hiring and keeping the servant. Verdict ElCHARDSON. » 1 » ? , ° Liabiiityouem lor defendant. iig°en?e of "er- Afterwards a new trial was moved for, on the ground of vauts. mis-direction, and the case was twice argued on account of its difficulty. The Court of Queen's Bench was equally divided. Erie, J., and Wightman, J., being in favour of the Judge's ruling, and Lord Campbell, C. J., and Coleridge, J., contra, so that ncyjnew trial was granted. The law was thus laid down by — Lord Campbell, C. J. — I think the questions to be left to the jury Tvere, whether the door was left open, and whether there was a want of ordinary care and diligence in so leaving it open, whereby the property was lost. The distinction taken between the neghgence of the servant in leaving the door open, and the negligence of the defendant in hiring or keeping the servant, it seems to me, cannot be supported. Wherever the loss of the thing bailed arises from a want of the degree of care, which, from the nature of the bailment, ought to be exercised, I think it immaterial whether the negligence be imputable personally to the bailee or to the servants employed by him. It was very truly observed at the bar, that this was not the common case of depositation, and that the duty of the defendant was not that of a bailee, to whom a chattel is personally delivered, to be safely kept and returned for reward. But there was a duty incum- bent upon the defendant as keeper of the boarding-house, with re- spect to the plaintiff's goods, when they were lawfully deposited in the hall, and even while they remained in the room appropriated to the plaintiff ; and I think it was a breach of that duty, if through the gross negligence of the defendant or her servant, the outer door was left open at the time, when thieves might be expected to enter the house, and by means whereof, the goods were stolen. The luggage of a passenger by railway, though never dehvered to any servant of the Company, and remaining in the personal keeping of the pas- senger during the journey, is nevertheless, in point of law, in the custody of the Company, so as to render them Hable for its loss, by the negligence of their servants. Great Northern Railway Coy. V. Shephard, 8 Exch., Kep, 30. But in the present case the jury were told to find for the defendant, although the loss arose from the neghgence of the servant, and although there was negligence on the part of the plaintiff, if the defendantwas not guilty of negligence in hiring or keeping the servant. This amounts to the doctruie, that the boarding-house keeper cannot be liable for the neghgence of the servant however gross, which causes the loss of the goods of the guest, if the master cannot be justly accused of negligence in hiring and employing that servant. To this doctrine I cannot accede. I by no means suppose that a boarding-house keeper is liable for a loss DIGEST OF DECIDED CASES. 187 of the goods of the guest by theft, where there has been no negH- Dansey i. gence. Eobbery, according to the latter opinion, would excuse even Richardson. an inn-keeper, although not a common carrier. But the loss here jg L^s^bilityon em- alleged to have arisen from the gross negligence of the servant, forligTnoV rfTe?! which I think the boarding-house keeper may be liable without ^'^"t^- proof of previous knowledge of any deficiency or evil habit in the servant. 8th February 1854. — Robert Baird, Pursuer, against addTan Addie & Millar, Defenders. — D. 16, p. 490. mSJ^^ Liability for _,, damage from ine piirsuer was a miner in the employment of the de-''''®A™P '" ^ fenders, who are coalmasters in Old Monkland. In conse-°°''^'*' quence of an explosion of fire-damp he sustained injury, and raised an action of damages against the defenders. It appeared that the pursuer and other three workmen were employed by the defender to drive a mine in one of their pits at a certain rate per fathom, and they were paid for the work so performed on each pay-day along with the other workmen in the pit. The contract contained no stipulation on the pursuer and his fellow-workmen that they should keep up the brattices, or otherwise make provision for the due ventilation of the mine, and in the absence of such stipulation, the Sheriff found that it was the duty of the defenders, according to the general practice and under- standing of such arrangements, to do so. The pursuer and his fellow-workmen went down into the pit between seven and eight o'clock in the morning, being about two hours before the general hour of beginning to work, and while in the pit on their way to the mine, and with a view to com- mence their work, they came in contact with a body of fire-damp, or other inflammable gas, which immediately ex- ploded, and in consequence thereof the pursuer sustained severe bodily iiijury, and was rendered incapable of working for a considerable time. The Sheriff" found, on the proof, that the brattices and air-courses, for securing the ventila- tion of the mine, were in certain parts unsafe and insuflB- cient. That it was usual in the pit, which was known to be subject to fire-damp, to have it examined every morning before the working commenced, but no precaution had been 188 DIGEST OF DECIDED CASES. Bairi) v. taken on the morning of the accident to examine the mine, Millar, or to warn the pursuer and his fellow-workmen against the damag?' irom ©xistence of fire-damp in the pit. The defenders had entered fire-damp in a into a Contract with John Hendry to put out the ironstone coal-pit. ^ •/ 1 from the pit, and to attend to the workings in the pit, but that the said John Hendry did not hold that it fell within his contract to look after the brattices or ventilators, in so far as necessary for the safety of the pursuer and his fellow- workmen in driving the mine. It also appeared, from the evidence, that the accident occurred on a Tuesday morning, and that the working of the pit had been discontinued since the previous Friday — the pit having been standing that time in consequence of the boiler of the engine requiring to be cleaned. It was stated by the defender, that although the pursuer and the other workmen knew that, when a pit was allowed to stand over for a day or two, there is a greater probability of foul air or inflammable gas accumulating than when it is going regularly, the pursuer and the other workmen went forward to the mine with naked lamps; and in consequence of this foolish, culpable, and reckless conduct, the accident occurred by which the pursuer sustained the injuries. It ap- peared in the evidence, that the person whose duty it was to see to the safety of the pit, did not warn the pursuer and the other workmen of any danger, although they passed him at the bottom of the shaft when going to the mine. The Sheriff-substitute (Smith) assoilzied the defenders, on the ground that the contractor had taken the responsibility of keeping up the air-courses and seeing that the pit was well ventilated. The Sheriff (Alison) reversed this judg- ment, and found £25 of damages due, with expenses. Tlie defenders advocated, and the Lord Ordinary adhered. The defenders thereafter reclaimed, pleading that the pursuer was barred from claiming damages, in respect he had him- self been guilty of negligence in reference to the accident, which would not have happened had he exercised due and ordinary care ; and, 2d, If negligence was imputable to any other party, it was to the contractor or his foreman, and that the defenders were not responsible for the negligence of contractors or persons in their employment. The pur- DIGEST OF DECIDED CASES. 189 suer pleaded generally, that the defenders having employed Baird «. him in the pit, they were bound to have it properly venti- miljtZ" lated, and were liable for the neglect of the contractors or^'''^'gf !°\ other servants in regard to it. fire-damp in a coal-pit. Lord President. — I think the iftterlocutor of the'Lord Ordinary substantially right. The injury to the pursuer was caused by the explosion of fire-damp in the underground works, and the evidence instructs that the ventilation there was not properly attended to — that the machinery was not in proper order. I think that the ex- plosion is to he ascribed to defect in the ventilation, and it will not do to say that it was owing to some other cause. That argument might have had effect, if there had been care paid to the ventilation, but not where there was not that care. Therefore some person is responsible for that state of matters. Again, I think it is made out that there was no previous examination in the morning of the air- • courses, and no notice to the workmen of danger. That is also a wrong for which some person is responsihle. Farther, I think the defenders are responsihle both for the defect in ventilation, and the neglect in the management of the air-courses. It was their duty to attend to hoth these matters. The ventilation of the mine was not devolved on other parties ; it was no part of Hendry's contract ; and quoad that, his workmen were the servants of the defenders, as in a question with the pursuer. As to the inspection of the works, and the notice to the pursuer of danger, it was clearly the duty of the defenders to provide for that, and whoever they devolved it on, was their servant so far as concerned the pursuer. The defenders are responsible for all these matters. It was their duty to take care that the ventilation was correct, that the machinery was in a proper state, and that there was a proper inspection. If it had been devolved on the pursuer himself to maintain the ventilation, then he failed in his duty to himself, his master, and his companions. But that is not the case, and therefore I think the interlocutor is substantially correct. Although the pursuer was rash, I do not think there was any ground for denying him fuU expenses in this matter. The damages are very moderate. Lord Eutherford. — If the pursuer is not hiiiiself to blame for the injury, the only question is whether the defenders are liable, and the only point made to evade UabUity is this, that under a previous contract they had devolved on Hendry the charge of the air-course of the whole pit. Be it so. But the pursuer did not contract with Hendry; on the contrary, the defenders were the parties who directly 'contracted with the pursuer. . In these circumstances, to whom was the pursuer to look for safety 1 To the defenders with whom he contracted. Hendry was responsible, not to the pursuer, but to the defenders, and the pursuer was entitled to look heyond Hendry and to his direct employers for safety. When they told hun to go down to that mine and work it, they guaranteed the safety of access. Siippose the ropes had heen defective, the defenders were 190 DIGEST OF DECIDED CASES. Baird v. liable for the result. The pursuer had no question with Hendry at ^Milla^'k " '"■1'— lie had to deal only with the defenders. Liability for "^^^ Court, by a special interlocutor, adhered to the finding of damage from damages, with expenses. fire-damp in a ooal-pit. Neilson's Ex- 1 7fch February 1854. — Neilson's Executors, Pursuers, BoDOEBANi> against William Rodgek & Sons, Defenders. D. 16, In^Tyma- P' 603. Jur. 26, p. 273. ohinery — fault suer.'^'^ ° ^"'" This was an action of damages originaUy at the instance of Margaret Neilson, a worker at the defenders' works at Bleachfield, Carmyle. She had come in contact with the machinery in the works, from the effects of which she died ; and the issue was, ' Whether the said accident was occa- ' sioned by the negligence or unskilfulness of the defenders, ' or others for whom they are answerable, in the construc- ' tion and management of their works, and the machinery ' therein, or part thereof, to the loss, injury, and damage of ' the said Margaret Neilson, and of the pursuers in her ' right, and as representing her.' It appeared from the evidence that, on the morning of the occurrence, Margaret Neilson was in the boiling-house, where she had washed herself, and was combing her hair. The bell was about to ring for the workers to return to their work after breakfast, when Margaret Kirkwood, a fellow-worker of the deceased, came into the boiling-house, and intending to go out by the back-door, which was locked and fastened on the inside, she requested the deceased to close and fasten the door after she (Kirkwood) went out. There was a horizontal shaft from the engine at that time in motion in the boiling-house, about three feet from the floor between the girls and the door. Kirkwood stooped below the shaft, and was followed by the deceased. The two girls opened the door, but Kirkwood only went out. The deceased returned below the shaft stooping, and in doing so she was caught by the hair, and the shaft turned her round thrice before it could be stopped. She died of the injuries. All the witnesses deponed that it was con- trary to the orders of the defenders to be in the boiling- DIGEST OF DECIDED GASES. 191 house, or to use the door which had been opened by Neilson's Ex- deceased and Kirkwood; and it was proved that the deceased ikiDGEK and knew this. , . S"? s- Injury by nia- The Lord Justice Clerk (Hope) intimated that he must, ctmery— fault in the state of the facts proved, direct the jury, in point ofsuer. law, that they must find for the defenders, and did so direct the jury. The Lord Advocate, for the pursuers, excepted to the said direction, and to the evidence being withdrawn from the consideration of the jury. In obedience to the direction, the jury found for the defenders. The exceptions were afterwards argued, and disallowed by the Court. At advising, — Lord Cockburn was uf opinion that the exception should be allowed. There was no doubt that the deceased had been killed by injury received at the defenders' works. The true question put to the jiuy, and on which the parties dififered, was, whether the injury was caused by the negligence of her masters. These masters main- taiaed that it was caused by her own negligence. Upon this, in- cluding the cross-examination, there was opposite evidence ; and from what transpired in the discussion of the bill, something might have depended on the comparative credibiUty of the witnesses. Now, when a judge trying a cause is of opinion that there is no evidence to go before the jury, it is his duty to withdraw the case from them altogether. When he thinks that the result depends on matter of law, as applicable to certain facts, the correct course is to get these facts fixed by a special verdict, or a special case, or in any other way that may be arranged, and thus to enable the Court to know what the facts are, or where the evidence seems to the judge to be so clear that it can warrant only one verdict, his course is to state this to the jury, who, if they wiU go wrong, can be set right by a new trial. His Lordship proceeded to state that the pursuers did not admit the defenders' statements of the deceased's negligence as the cause of death. That they held the strongest testimony against them to be tainted by partiality, as the witnesses were in the defenders' employment That the prohibition against entering the boiling- house had been virtually withdrawn by the practice of the works. That negligence on the part of workers did not ne;;essarUy absolve masters from the duty of protecting them, to a certain extent, even from their own rashness. " It is no defence of a pit near a pubUc way, or of a fatal trap or spring-gun, or of an unenclosed piece of dangerous machinery, that the person hurt had been warned off, or was trespassing, or drunk ; and since this most dangerous place was left accessible, it depended on circumstances and on degrees whether a general order to keep out of it liberated the defenders from all responsibility. The Factory Act directs that ' all parts of the mill 192 . DIGEST OF DECIDED OASES. Neilson's Ex-' gearing in a factory shall be securely fixed,' (7 and 8 Vict., c. 15, EcuTORse. sec. 21). Whether this applies to a bleaching manufactory, I do Sons. ^°* ^^ present know, hut I am certain that our common law suiD- Injury by ma-pHes US with a similar principle. Now, what shall be deemed secure chinery —fault fejjgjjjg jg gmely a question for a jury. The correct charge would suer.*"^ ° ^""^ have been for his Lordship to have told the jury, that if on the evi- dence they believed that the deceased had been killed by her own negligence, they must find for the defenders ; and if they believed that her death was owing to the negligence of the defenders, then they must find for the pursuers. LoBD Murray. — I agree that if a pursuer has brought facts, the jury are the sole judges of what is proved or not proved. Now here the issue is, whether the accident was occasioned by the negli- gence or unskilfulnese of the defenders, or others for whom they are answerable ? If the pursuers had proved anything to shew negligence or unskilfulness, they were entitled to go with that evidence before the jury. But I find nothing before the jury from which negligence or unskilfulness could be inferred. On the contrary, I find much the other way. No doubt it is -an extreme case only in which a judge can interfere, and yet it is common enough in England. There are frequent instances in that country of cases determined on what is called a nonsuit. If there be any case at aU, the judge is bound to let it go to a jury. But here there is not a particle of evidence to shew negligence on the defenders' part, or bad construction of their machinery, to account for the accident. It appears that it was not the practice for girls in the defenders' employment to go into the room where the accident occurred, and the workers were forbidden to go there. Are the defenders responsible for the pursuer's dis- obedience of orders, or is it any answer that the door was not so fa.stened as to prevent her getting there ? A shopkeeper leaves his till unlocked ; is it therefore lawful to take money out of the till ? It is quite clear that farther evidence was required to make out a case sufficient to go before a jury. It is no doubt a delicate and difficult duty which a judge has to perform in withdrawing a case from a jury, but I never saw a weaker case presented by a pursuer than the present. Lord Wood. — It was said that the pursuer had stated a relevant case of fault on the part of the defenders, and having got the issue which was sent for trial by a jury, and led evidence upon the facts of the case, they were absolutely entitled to a response by the jury to the issue, however clear it might be in the opinion of the presid- ing Judge, that the case upon the evidence was not sufficient in law to entitle fchem to a verdict. It is obvious, that when stated in this way, the pursuers' proposition would exclude a case ever being taken from the jury. But inveterate practice and authority establishes that there are cases in which all consideration of the evidence on the part of the jury may competently be dispensed with, and where no response is given by them to the issues but one in point of form. This was what was done in the present case. The question, or at least the first question, and the one which originally was pressed upon the Court, DIGEST OF DECIDED CASES. 193 by the pursuers, as this only ground of exception is — ' Had the Neilson's Ex- ' Judge the power in point of form to do it, or was it positively in- ecutors». ' competent. It is an entirely separate matter, whether although ggj^g. ' competent in form there may be room for exception, if it can be Injury by ma- ' shown that a mistaken view was taken of the evidence, and that it •'''me^) fault ' ought to have been left to the jury.' His Lordship proceeded tosuer. shew the competency of the course taken by the presiding Judge, and the propriety of it on a review of the statements in the case, and the evidence offered, and thus concludes, — '■' After attending to all that ' the soUcitor stated on the subject, and on a careful perusal of the ' proof, I shall only say that I have not been able to discover any- ' thing in it, which to my mind suggests any reasonable doubt, that ' the opinion formed by your Lordship of the evidence is well ' founded. I can see nothing in it which can render it a fair subject ' for being weighed by a jury. As I read it, it is all one way as ' respects the matter, which makes the relevancy of the pursuers' ' case. There is in it nothing applicable to that portion of the case ' except to contradict it ; and I should say, that even if the evidence ' had not gone so far as it did, but had been confined to a portion of ' the facts which it discloses, there would have been enough to ' amount to a complete failure on the part of the pursuers.' In the words of Lord Monorieif, already quoted, the case is simply this, ' that they have failed to prove the only case undertaken in the ' issue, or rather have actually proved a case inconsistent with it, on ' which the Judge must of necessity direct the jury, that in point ' of law they can obtain no verdict' Upon the whole, then, in whatever view the pursuers' exception is put, I am of opinion that it ought to be disallowed. This opinion was pronounced after the reversal in Muir or Pater- son V. Wallace and Co.— id supra, p. 179. 10th June 1854. — BERNARD SwiFT, Pursuer, against B. Swift ». Andrew Christie, Defender. — 26 Jur., p. 483. Master and ser- vant's respon- sibility of form The pursuer was a workman in the Town-hill Colliery in of issue. October 1850, when a part of the roof fell in and injured his leg, so that amputation was necessary.' The defender was proprietor, or lessee of the colliery. The defence was, that at the time of the accident the pit was in the hands of James Izatt, a contractor, that the defender had no connec- tion with the management or mode of working the pit, that he was not the pursuer's employer, and that the occurrence whereby the injury had been occasioned was an accident for which no blame could be imputed to any one. N 19-1 DIGEST OF DECIDED CASES. B. Swift ». The pursuer proposed this issue, — ' Whether the said in- Master and ser-' juries were sustained by the pursuer while employed in bmty^and^o™ ' ^^® Service of the defender, and were occasioned by the of issue. ' unsafe and insufficient state of the roof of the said pit, or ■ part thereof, and by the fault, negligence, or unskilfalness ' of the defender, or of another or others for whom he is ' responsible, to the loss, injury, and damage of the pursuer.' The defender proposed the following issue, — ' Whether the ' pursuer was in the employment of the defender in the month ' of October 1850, and whether, while in the defender's em- ' ployment, the pursuer, in the course of said month of ' October 1850, sustained a personal or bodily injury in the ' Crawford Pit foresaid, through the fault of the defender, ' from the insufficient state of the roof of the said pit.' The pursuer maintained that his issue was one often adopted for the trial of such cases. The defender contended that the one proposed by him was preferable. It was shorter, and asked generally the question, whether the occurrence took place by the fault of the defender? If it did not take place by his fault, then he is not responsibla Lord Eutherfurd. — I do not see any objection to the defender's issue, if it be quite understood that the word ' fault ' opens up the whole case in the record. Lord President. — As legal principles evolve themselves, we have shortened our issues. I do not see any great danger from adopt- ing the defender's issue. I think it a great improvement to leave out the words, ' negligence' or ' unskilfulness.' I think the dropping of the words ' or others for whom they are responsible,' is also an improvement. Wood. — Will there not be danger lest the jury should think it necessary for the pursuer to make out that the occurrence arose directly from the fault of the defender ? Lord President. — In any case, and even if the words proposed to be left out were retained, it would still be necessary for the Judge to explain to the jury that the defender is responsible for the fault or negligence of his servants and workmen. Defender's issue approved of to try causa DIGEST OF DECIDED OASES. 195 13fch June ISS-t. — Lygo against Newbold. — Lygod. Exch. 23., L. J., 108. OwnTnriia- ble for injuries T>i • ^'nf 1 • 1 1 /> 1 ■ '" "■ P^son on Jrlauitm hired defendaiit, a earner, to carry her furniture-i^soart,— there from Carnaby Street to New Inn Passage. One load was ti3o?peraou" safely conveyed. After loading the cart a second time, "^^ '^'"''''*^®' plaintiff' and defendant's carman both got upon the cart. While on their way a crash was heai-d, and the cannan got down. Plaintiff" then said if there was danger she would come down. The carman said no, and desired her to stay where slie was. A hammer and nails were got and some thing was done to the cai-t, but after going a little distance a wheel came off" the cart, and the plaintiff was thrown out and injured. The Court of Exchequer held no action lay against the carrier, as the plaintiff' brought the mischief on hei-self, and the defendant's contract was merely to cany her goods, not herself 1 3th June 1854. — Theobald against Railway Passenger's Theobald v. AssuEANCE Co.— 23 L. J.,, Exch. 249. ^oralluR- ANOE Co. Eailway acoi- Tlie plaintiff had insured his life for one yeai" with 'de- dontr-dama^es fendants for £1000, by Insvu'ance Ticket, premium £l.iury oniy-not The ticket bore, that the above sum would be paid to his representatives in the event of death happening to the in- sured whilst travelling in any class carriage on any line of railway in Great Britain and Ireland, or a proportionate part of the said £1000 would be paid to the insured him- self in the event of his sustaining any personal injury by reason of such accident. Certain conditions attached to the ticket bore, that in case of accident, notice was to be given to the Company within a reasonable time, and in case of dispute as to the sum to be paid for peraonal injury, the amount was to be iixed by arbitration. Plaintiff' was a bookseller and tract distributor. Within the period insured, he was tmvelling by the Railway at Wolverhampton, where it was necessary to change carriages. jury torloss ot time. ] 96 DIGEST OF DECIDED CASES. Theobald ». cross the line, and get a fresh ticket. He was coming out senoebAssub- of the carriage for these purposes, when his foot slipped from ^Uway' acci-*^^ ^*^P' which was Wet with a recent shower, and he fell dent— damages between the Carriage and the platform and injured his leg. for "DGrSOtlEll in- tJ x i» c? jury only— not He brought this action accordingly. The jury found there ""^'wag no negligence on plaintiff's part, and gave him a verdict of £134, 19s. damages, of which £100 was for loss of time and profit on his business, the rest for expenses caused by the personal injury. The defendants afterwards moved to have the verdict entered for them (pursuant to leave reserved at the trial,) on two grounds, (1.) Because this was not, strictly speak- ing, a railway accident at all, and did not come within the meaning of the policy ; (2.) Because the jury ought not to have given damages for loss of time and profit in business, but that all that could be recovered was expenses caused by the personal injury. The Court of Exchequer held it was a ' railway accident,' but that no damages for loss of time or profit could be recovered. Pollock, C. B. — The first question 'ifl, whether this is a railway accident within the meaning of the policy, and we think it is. I do not know whether we are called upon to lay down any rule beyond what is necessary to decide this case, and it would be very unsafe if, on a single instance brought before us with certain circumstances, not all of them of a perfectly general nature, we were to lay down a rule that is to govern all cases. On the present occasion, however, it is quite plain that thft plaintiff was a traveller on the railway, and though ra one sense the journey had terminated by the carriage having stopped, the plaintiff had not at the time of the accident ceased to be connected with the carriage, by being still upon it. He was stepping out of it when this occurred, and, as the jury have found, without any negligence or culpable inattention to his security. He was doing an act which, as a pa8.senger, lie must necessarily do, for every passenger must get into a carriage, and out of a carriage when the journey is at an end, and he can liardly be considered as disconnected with the carriage and railway, and with the machinery of motion, until the time when he has safely landed, as it were, if we may u.se that expression, from the carriage and got upon the platform; while in the act of leaving the carriage this accident occurred, and it is attributable to his being a passenger on the railway, and it arises out of an act immediately connect(;d with his being a passenger. Under these circumstances, we are of opinion that this was a railway accident within the meaning of the policy, and that the action was DIGEST OF DECIDED CASES. 197 maintainable. As to the other question, that of damages, we are of Theobald v. opinion that whatever he the ohject of the insurance, whether with Railway Pas- referenoe to death or any accident inflicting an injury short of death, ^'^e^co. ^^^'*' the injured party must receive the same consideration, and in esti- Hallway acci- mating the damage and injury done to the traveller, the consequen-?™'"'^^'"?'?^^ tial mischief of losing some profit is not to be taken into considera- jury only— not tion, otherwise a passenger, whose time is more valuable than another, for loss of time. would, for precisely the same personal injury, receive a larger re- muneration than another whose time would be of less value. What the Insurance Company calculated upon indemnifying for is the expense of pain and loss, it may be of a limb, connected with the immediate accident, and not the remote consequences that may follow, according to the pursuit or profession which the passenger may be following. We think, therefore, that the verdict must be reduced to £34 19s. Aldeeson, B. — It was contended that the estimate of the damage in case of personal injury must bear the same proportion to the amount insured in case of death, as the injury caused by the acci- dent bears by the loss by death. But I am of opinion that we can institute no such comparison between the accident and the death, and that the true measure of damages is the amount of injury the plaintifif sustained by the accident, not exceeding the sum which they must have to pay in the case of death. I also think that a railway accident means an accident to a person travelling by railway, and arising out of the circumstance of that fact of travelling ending in injury, and it does not in the slightest degree depend upon any accident to the railway itself. 2 2d June 1854. — John Brownlee, Junior, and Curator, Pursuers, against Chaeles Tennant and Co., and ^^^^^^^„_ Andrew Gardner, Defenders.— D. 16, p. 998 ; Jur. 26,tj^a.nt&Oo. P5 2 '7 Liability for injuries sus- tained on a This was an action at the instance of John Brownlee, and railway. his father as his curator, for damages for an injury sustained on 16th March 1851. The defenders, Tennant and Co., are lessees of a coal-pit situated on Braehead farm, near Baillieston, from which coal-pit they formed and use a private railway for convey- ing "their coals to the DrumpeUier Railway. The Dmmpel- Her Railway is formed on an incline, and is wrought by a fixed engine from the top of the incline, and the private railway is formed on the level, and wrought by horse-power 198 DIGEST OF DECIDED CASES. BKowNLiiE V. to the foot of the incline, where the horses are taken out of and Gardner! the waggons, and the latter sent up the incline by means of ^cMuriis'^sus- '^® engine. This private railway passes near a parish road, tained on a and Very near the house occupied by the pursuers, which is aiway. situated at the foot of the incline. The other defender, Andrew Gardner, was the contractor for the haulage of the waggons on the private railway, which he performed with his own servants and horses. The pursuers' averments were, that prior to the date of the injury the railway was left by the defenders, Tennant and Co., in an unsafe and insufficient state ; and in parti- cular, that the fence was broken in several places near the pursuer's house, and the breaches had been left unrepaired, in consequence of which it formed no protection to the public, and presented no obstruction to children going upon the railway. That on the 16th March 1851, the pursuer, John Brownlee, junior, (seven years of age), wandered upon the railway through one of the breaches in the fence. That on that day two young and inexperienced boys, named M'Dougall and Buchanan, were engaged as servants of the defender, Gardner, in taking charge of the haulage of the waggons on the private railway to the foot of the inchne : That on the said occasion a horse with two of the waggons was allowed by these two boys to move forward, without any person to guide it ; and as the pursuer, who had wan- dered on to the railway, was crossing the line, the horse and waggons came in contact with him, whereby he was thrown down, and the waggon passed over one of his legs, which was so injured as to require to be amputated above the knee. The defender, Gardner, admitted that he was contractor to Messrs. Tennant for the haulage by horses on their pri- vate railway at the time of the accident, but stated that he had nothing to do with the fences, or any other thing con- nected with the railway. He averred that the accident had occurred entirely through the trespassing of the child, and pleaded that, in these circumstances, he ought to be assoilzied. The defenders, Tennant and Co., on the other hand, pleaded that, as the injury was not caused by them or their servants, DIGEST OF DECIDED CASES. ] 99 but by a contractor, for whom they were not responsible, Brownlee «. x-L ■ i 11 Tennant&Co. tnere was no case as against them. and Gardnek. The Lord Ordinary repelled the plea for Tennant and 00.,?;'.^^^^*^*°^ and the objection stated on behalf of Andrew Gardner, andta^ed °^ a allowed them to lodge a draft of such issue or issues as they * '^^^' might have to propose for the trial of the cause. His Lordship stated in a note, that although the summons and revised condescendence, even with the aid of the expla- natory minute, were undoubtedly loose and ill expressed ; yet the substance of the advocator's statements,' when suffi- cient trouble is taken to analyse them, appeared to amount to a relevant case for an issue. He added — As regards the respondent, Gardner, he seems to be sufficiently brought into connection with the accident by the statement that he had charge of, and was in the act by himself, or by another or others for whom he is respon- sible, of performing the haulage when the accident occurred ; and as regards the respondents, Tennant and Co., they seem likewise to be sufficiently connected with the accident, by the averments, to the effect that they were occupiers of the railway ; that the waggons and coals were their pro- perty ; that Gardner was their contractor or servant for the haulage of the waggons ; and that he was performing this duty, either with his own or their horses and servants at the time of the accident. The words contractor for or in the other defender's service for the haulage of the waggons, seem to be used upon the footing that contractor and servant are to be regarded as synonymous terms, which they may possibly turn out to be, as is shewn by the cases of Rankin V. Dixon and Co., 10th March 1847, and Nisbett v. Dixon and Co., 8th July 1852. On the other hand, these terms may turn out not to be synonymous, as is shewn by the case of M'Lean v. Russell, M'Nee and Co., 9th March 1850. But all this is matter for investigation and consideration at the trial, when there may be a verdict either for or against both sets of respondents, or against one set of respondents and not against the other. On the whole, whatever may be the result of the case on the proof, the Lord Ordinary does not think that there are sufficient grounds for throwing it.^_^ out of Court on the relevancy. ™ 200 DIGEST OF DECIDKD CASES. Brownlee v. Gardner reclaimed, alid insisted on his right to absolvi- and Gakdner. tov, maintaining that the pursuers had laid their case exclu- tojiiries^sus- sively upon the insufficiency of the fencing of the railway ; tained ou a ^^at that was a matter with which he had nothing to do ; raihvay. ° ' and that he was entitled to have the action dismissed, so far iis he was concerned. Answered by the pursuers — The demand is premature at this stage of the proceedings, and ought not to he granted. We do not know what was the contract between the de- fender and 'Messrs. Tennant, and cannot assume his non- responsibility. Besides, in a question of civil responsibility, a party would not be entitled, in the position of the defen- der, to escape, because another pai-ty may not have kept the fences in good order. He was bound not to have worked the line if he could not do it with safety to the public. Lord Justicb-Clerk. — The difficulty the Court feels is in giving effect to the plea for Gardner at present. It may be ■vrell-founded, but can we assoilzie him now, and refuse an issue, before we know the facts ? There may be nothing else in the ease but the Uability on Messrs. Tennant, but we must ascertain what the contract is, and how it stands. I propose to grant the issue at present. The other Judges concurred. The Court meantime granted an issue against Gardner. staiifcs. O'BHYiiEt.. 8th July 1854. — MaryO'Bryne, Pursuer, against Henry Injury' "from J. BuEN, Defender, 16, D. B. M., 1025, 26 Jur., p. 559, machinery — master held lia- ble in circum- The pursuer, while employed by the defender in a clay- mm, of which he was proprietor, had her arm crushed by the machinery, and she lost the arm. An action of damages was raised at her instance. The summons set forth that she entered the defender's service in September 1852 as a worker in his clay-mill, situated near Crossgate, in Fife — that she had only been nine days in the work at the time of the accident, so that she was inexperienced in regard to the risks from the machinery — that James Andei'son was entrusted by the defender with the charge of the machinery, the superintendence of all the operations connected there- with, and the chai'ge and superintendence of the pursuer and DIGEST 01' DECIDED CASES. 201 the other girls employed at the work, and with the duty of o'^f "e v. seeing that all the operations were safely and properly oon-injuiy from ducted — that the pursuer was chiefly engaged in bringing masterhefdUa- forward the prepared clay for the purpose of its being ^^j^^^^"™"™" passed through the roller's — that it was part of Anderson's own duty to have removed at intervals the waste clay which did not pass through the rollers — that this removal could only be effected safely after taldng off the clutch which connected the roUei-s with the other machinery, or by stopping the steam engine by which the whole was put in motion ; but that on the occasion libelled, Anderson ordered the pursuer to I'emove the waste clay without at the same time suspending the motion of the roUei's, by taking off the clutch or stopping the engine, the consequence of which was that the pui-svier's right hand was drawn in between the rollers, and was with pai-t of her arm crushed so as to render immediate amputation necessary. It was fui'ther set foi-th that even if a person of skill and experience might have succeeded in removing the waste clay while the rollers were in motion, the operation was one of such risk and hazai-d that no inex- perienced person, like the pursuer, ought to have been ordered to engage in it. The defender contended that the statements of fact did not support the conclusions of the summons, and that no such action lay at the instance of a servant against his employer, founded solely on the alleged fault or negligence of a fellow-servant, and not at all ixpon any breach or neglect of duty on the part of the employer. The Lord Ordinary sustained the relevancy and appointed issues. He said — 'It is contended that these statements ' do not amount to a relevant case to infer damages against ' the defender. The Lord Ordinary thinks they do. It is ' not necessary here to determine how far, when two or ' more servants are engaged to perform some common opera- ' tion, the one must be held to talce the risk of the acts or ' neglect of the other in the course of their common employ- ' ment. Much must depend upon the circumstances of the ' pai-ticulai- case. But the present, according to the pur- ' suer's allegations, is the case of an inexperienced girl ' employod at a hazardous manufactory, subject to the ' orders, and placed under the protection of an ovei-seer 202 DIGEST OF DECIDED OASES. O'Beyne v. BUKN Injury from machinery — master held lia- ble in circum- stances. appointed by the defender to act for and represent him, and intrusted by the defender with the duty which he must otherwise have performed himself, of superin- tending the machinery, and of superintending also and caring for the safety of the numerous workers (many of whom might be expected to be young and inexperienced), who might be employed in such a manufactory. ' Although it is stated that the pursuer was chiefly em- ployed in bringing forward the clay, and that Anderson ought to have removed the waste clay from the rollers, it is obviously implied in her whole statements that the pur- suer was under Anderson's general order, and that it was not for her to judge what particular piece of work in the manufactory she ought to be required to perform. There is nothing in her allegations to imply that she either was or supposed herself to be engaged on a footing which would have entitled her to disobey Anderson's orders; and sup- posing her to be otherwise, the Lord Ordinary is not pre- pared to say, looking to the other circumstances, that this would have been sufficient to exonerate the defender from liability. ' Whatever limitations it may be thought reasonable to place upon the liability of a master for injury done to a servant by the act of his fellow-servant, the Lord Ordi- nary cannot think that these ought to go the length of relieving the master in such a case as is alleged here, from all liability for his representative acting in the exercise of the very authority with which the master had invested him. 'The cases in which masters have been held Uable for loss of hfe or injury to the lieges by negligence, occurring in their absence, of servants entrusted with their horses and carts, show, in the first place, that it is not necessary there should be any implied contract between the master and the person injured for that person's safety (although even that principle might come in here), and ia the second place, that it will not necessarily relieve the master that the servant's negligence may infer criminality upon his part, amounting even to culpable homicide. ' Without saying that in no case the general plea that D1GE8T OF DECIDED CASES. 203 ' the master cannot be held liable for injury to one of his o'Bbyne ». ' servants occasioned by the fault or negligence of a fellow- i„ju?y"fvoia ' servant may be effectual, every case must depend to a great ^J;°J™^Jg^j^_ ' extent on its own circumstances, and here, although theWs in oiroum- ' machinery was no doubt all right, the party who is said^ ' to have given the order, and to have been guilty of the ' negligence which occasioned the accident, was the master's ' representative, upon whom the master had devolved both ' his powers and his duties over young and inexperienced ' workers in a hazardous manufactory, whose superintendence ' was indispensable, which seems to the Lord Ordinary to ■ relieve the question of relevancy from all serious difficulty.' The defender reclaimed, maintaining, that while he did not ' deny responsibility for his superintendent, the pursuer attributed culpa alone to Anderson, and that therefore no blame can be attributable to the master. It is substantially an averment that Anderson acted in violation of the defen- der's orders. — The Court adhered. 7th July 1854. — John Hill, Pursuer, against The Cale- donian Railway Co., DefenderK — 26 Jur. p. 553. D. 17,hill v. Cale- ' ' ^ DONIAN EaiL- p. 569. WAV Co. Liability for injury by oare- The pursuer was engaffed at the goods traffic department less placing of . -r. .1 n ,1 j> 11 i.' goods at a rail- of the Ciiledonian Railway for the purpose oi collectmg way station, accounts, conveying goods to the station, and performing any other duties which those in authority over him might direct; that he was subject to the orders of Matthew Foulds, the goods manager, whose son had the general su- perintendence on the part of the defenders ; and that he was ordered by young Foulds to take the numbers of the wag- gons and sheets, and label the waggons standing at the sta- tion shed. He alleged that, while he was in the performance of this duty, a chest of drawers fell upon him from the plat- form, a height of about four feet, and so crushed his ankle as to render him lame for life : that the chest of drawers had been placed there by the servants of the Glasgow and South-western Railway Company while the pursuer was absent at dinner, or collecting goods, and was so neai- the 204 DIGEST OF DECIDED CASES. Hill v. Cale- edge of the platform as to be liable, in consequence of one ° WAY Co. of the back feet being off, to be easily thrown dovsTi by the M^''by*care-^'^^^S ^^ ^^^^ platform, upon which it had stood in the de- less placing of fender's custody, for transmission, for a considerable time way station, before the pursuer entered the goods shed : that the imme- diate cause of the falling of the chest of drawers was the shaking of the platform, occasioned by the unloading of goods upon it, the backing of carts against it for the un- loading of goods upon it, or such other operations necessarily occurring in the goods shed of a railway company ; or by the violent and riotous conduct of certain carters or porters in the employment of the defenders. The accident arose from the culpable negligence and mismanagement of the defenders, or their servants, or from the culpable, and violent, and riotous conduct of those for whom the defenders are responsible. That it was the duty of the defenders, or of their goods manager or other servants, to have seen the chest of drawers securely stowed away until it was put upon the train ; and the pursuer added, that it was no part of his duty to see the article stowed away, nor was he aware of its being there, or of its wanting a foot, or being inse- curely placed. The Lord Ordinary reported the case, adding in a note : — ' As regards the pursuer's employment — his being sub- ' ject to the orders of Foulds, senior and junior — ^his being ' acting under their order at the time, the unsafe position ' of the chest of drawers, and the occurrence of the accident ' within the goods shed of the defenders, without any faidt ' of his own, the pursuer's statements appear to be specific ' enough. But beyond this they are vague and indefinite. ' It is not said that the defenders are responsible for the ' Glasgow and South-Western Railway Company, who placed ' the chest of di-awers where they were upon the platform. ' The blame attributable to the defenders must consist, ' therefore, in leaving the article there. But although it is ' said it should have been stowed away, it is not said that it ' was the duty of any particular official, or person, or class ' of persons in the defenders' employment to have stowed it ' away, or who it was that failed in this duty, nor how long ' it had stood upon the platform, except that it had stood DIGEST OF DECIDED CASES. 205 there for a "considerable time," nor that any person in Hill ». Cale- the defenders' employment saw it standing there, or knew, wat Co. any more than the pursuer did, that the article had a?^^*™''^ ^°^g_ lame foot, or was insecurely placed. less placing of ' In any view, the pursuer's statements seem to the Lord way station. Ordinary to afford no sufficient means, at this stage of the cause, for pronouncing any decision upon the defenders' plea, to the effect that they are not responsible for injury occasioned to the pursuer by the fault or neghgence of a fellow-servant. The Lord Ordinary, before pronouncing any judgment upon a plea of that kind, would desire to know what was the relative position of this pursuer to the fellow-servant whose fault or negligence are said to have caused the injury, and more particularly, whether the so-called fellow-servant was or was not a person en- trusted by the defenders with the duty of superintendence at the station, and whose orders the pursuer was bound to obey. The Lord Ordinary has just decided a question of this description, so far as it arises on relevancy, in another case, {O'Bryne v. Burn,) where he has referred to several of the authorities, but he does not consider that satisfac- tory materials are afforded by the pursuer's statements for deciding that point here. ' As regards the pursuer's alternative statement, that the shaking of the platform was either occasioned by opera- tions necessarily occurring at the station, " or by the vio- lent and riotous conduct of certain carters or porters in the employment of the defenders," the Lord Ordinary greatly doubts whether in any view this can be held so stated as to found a separate and substantive issue, such as is proposed by the pursuer. But if the fault and negligence in leaving the lame-footed chest of drawers in an insecure position on the verge of the platform, from whence it fell upon the pursuer, be relevantly and specifi- cally enough averred, they may probably be considered sufficient to enable the pursuer to bring his cause Tinder a single issue.' The Court adjusted the following issue : — ' Whether the pursuer, while working in the employment of the de- fenders in the goods shed occupied by them at Paisley, 206 DIGEST OF DECIDED CASES. Hill v. Gale-' was on the 2d January 1852, knocked down and severely "^"w^Oo.'^" ' injured by a chest of drawers falling from the defenders' LiaKiity for^^ > platform through the fault of the defenders, to the loss, less placing of ' injury, and damage of the pursuer.' way station. The jury returned a verdict for pursuer, damages £300. The defenders moved for a new trial, on the ground of the verdict being contrary to evidence. The Court, on 3d March 1855, refused the motion. (D. B. M. 17, p. 569.) At advising, — LoED President, (after going over the evidence) — The first ques- tion is. Does it appear that there was fault at all ? On the first aspect of the matter, I should say that this is clearly a case where there was fault. I think that the placing of an article in the form of a chest of drawers or wardrobe, which had lost one of its legs, on the edge of the platform, was a wrong thing to do. There was as great a risk of its falling as of its not falling. It is said the defenders were entitled to put it there. I do not dispute that. But they were not entitled to put it in that position on the pretence of its being sound. It ought to have been placed in a secure position. A chest of drawers is not secure standing on three legs, instead of four. It might have been laid flat, or against a wall, which would have made it safe. Being placed on the edge of the platform, it is not safe. That is wrong, and it is a fault for which somebody is responsible. The question comes to be, Is the Company responsible for any injury following from that fault? In one point of view they are, unless it can be made out that the pursuer himself was the person who did it. The Company say that there was a person whose duty it was to look after these matters. It would be strange if there was not Therefore, there being a proper person to attend to these matters, was a duty incumbent on the Company ; and if that person was not there, and was absent by authority of the Company, that would make them responsible if they did not provide a proper superintendence. T am going on the supposition that the want of the leg was what no one observed. But farther, if the Company, as is their habit and arrangement, as I read the evidence, left to the hired servants of a neighbouring Company the duty of carrying in and placing it for them, and looked no more after it themselves, they made these people their servants, and it could hardly be ex- pected that they would say they left it in a dangerous situation. Therefore the question comes to be, whether the fault be attribub' able to the party himself, yea or nay. Now he says— and in that he is confirmed^that on this occasion three out of five persons were absent. In that state of matters. Hill, who had been previously a porter, but then placed on other duty, was asked and desired to do duty at the station. It rather appears that he was bound to do so if required, and he admitted that he was desired to do so. Then the question comes to be. Was he placed in the peculiar position of niClEST OF DECIDKI) CASES. 207 doing tho duty of Jack, fiinl nothing else, or merely to make up the Hill «. Oalk- imimrfoct complement of people in tho absence of three of them, donian Bail- Upou tlie presumptions and probabilities of the case, I think he wasLiabiiHy for sent there to give holp the best he could, not because Jack alone injury by oaro- was absent, but because three of tho usual number of porters were^™^,Pl°f'°B .°* absent. Faulds junior says that Hill was told to act as foreman wTystatio™" that day, but this evidence is not to be relied on. Alexander Faulds was in use to do this duty, and he was there that day, while the foro- luan was out of tho way. He (tho pursuer) might act, to a certain extent, in .rack's place, Ijut that will not do unless it was put to him that he was to take tho superintendeneo and charge, Suppose Hill had been appointed, it is proved that the drawers was brought in during his absence at meals ; tho fault was in the parties who had charge of it when Hill was absent. It was fairly a question for a jury to take into consideration, and I. do not think this is a case in which we can disturb the verdict on the ground of being contrary to evi- dence. ITis Lordsliip farther stated, that it did not appear to the Oourt that tho verdict could be intorl'cred with on the ground of excessive damages. LlTTIiBD. ShM- 27th January 1855. — John Little, Pursuer, against The meb™ Iron rw X .-,,-< n J! 1 -^NB OOAL Oo. SUMMERLEE IRON AND COAL COMPANY, JJejenderS. Whether mas- T OK io-T\i*r_oi(\ tor liable for in- jur. 27, p. 13 i), D. 17, p. 310. jury to pursuer (not a servant) asked by man- The pursuer was a miner, residing near Holytown, ager to assist While walking on the high road near Stevenston, he was'" requested by tlio manager of the defenders' works, to assist a number of other men, then employed in removing a large boiler of five tons weight from a depot at New Stevenston to Jerviston, intended for one of the defenders' steam en- gines. He alleged, that while so employed, and when trying to move a wheel of one of the carts on which the boiler was placed, he laid hold of one of the spokes, but very little movement had been made, when in consequence of the great weight pressing upon the axle of the cart, it became twisted, the wheel fell in against the cart, and the cross-bar of the cart on which the boiler was resting fell down and injured his left hand and arm. Tliat the carts were ill adapted for the purpose intended, either aa to strength or otherwise. He pursued the defenders for damages. The defendera pled preUminarjj, that tlioy were under no liability to the purauer, who wa.s not in their service or 208 DIGEST OP DECIDED CASES. Little D. Sum- employment at the time. That the Company ought not to ^D^'ooAL Co! be liable because their manager asked a looker-on to assist, ter'iiabiefo?^^' ■'■*' ^^ ^ simple request, which it lay with the pursuer to jury to pursuer comply with Or not, just as he thought proper, and if he did a8i°e(fby^ man- comply with it, he did 80 at his own risk, and that no rele- m'tMrwork.^''^^'^* ground of action was libelled. The Lord Ordinary reported the case, and the Court sus- tained the relevancy, and approved of the following Issue : ' Whether on or about the 6th day of March, 1852, the ' pursuer, while doing work for the defenders at the request ' of their authorised manager, was hurt in his person, in ' consequence of defect or insuiSciency in the carts or other ' implements used in said work, arising from the fault of the ' defenders, to the loss, injury, and damage of the putsuer.' Lord Justice Clerk. — I do not pretend to say what may or may not arise- at the trial upon the state of the facts then disclosed ; but the statement here is, that in the ojjinion of the defenders' manager more people were ' necessary, and the pursuer was asked to assist. How can we say the partners are not answerable 1 It may turn out that the manager made an improper request, but we cannot assume that. Daroie w. Ma- ] 0th March 1855. — William Dargie, Pursuer, against GISTRATES AND m-«T r.i^ -n -^ TowN-couN- The Magistrates and Town-Council of Fobfak, Be- LUbulrfor" fenders.— n 17, p. 730 ; Jur. 27, p. 81 1. iujurieB caused obstraotion'^on The pursuer was walking along the ' Little Causeway,' one public streets, ^f ^^le streets of the royal burgh of Forfar, late at night, when he fell over a large stone lying on the pavement, and injured his knee. He raised an action of damages against the defenders, as representing the community of the burgh, .concluding for payment out of the burgh funds. He averred that the defenders were the conservators, and had the sole management, control and superintendence of the public streets, that for many years they had drawn a large revenue and expended large sums out of the common funds of the burgh, in lighting, repairing, and making the streets, and that the inhabitants relied on their performing these duties — that the footpath on the ' Little Causeway' was DIGEST OF DECIDED CASES. 209 made at the joint expense of the defenders and the proprie- Dakgie ». Ma- tors of the houses, and the stone over which he had fallen, town-Coot- and which was the property of the defenders, had heenL^^j£*"o^" placed there by them, or by persons acting for them, andjni™es caused that it had lain on the pavement for some years through obstruction on their culpable negligence ; that though the night was dark,^" "'*®^'^- none of the lamps in the ' Little Causeway' were lighted, and that this was also, attributable to the culpable negli- gence of the defenders, whose duty it was to have the street properly lighted. The defenders pled, inter alia, 2d and 3d, That no rele- vant statement of misfeasance or neglect of duty on their part had been made by the pursuer, and that supposing the injury complained of could be traced to their negligence, the burgh funds could not be answerable for the consequences of their delinquency. The Lord Ordinary ordered the pursuer, before answer, to lodge a draft of the issues he proposed for the trial of the cause. The following issue was proposed : — ' Whether on or about the night of the 7th of March 1853, ' by the fault or negligence of the defenders, or of some ' person or persons for whom they are responsible, the pursuer, ' while passing along the south side of a street called the ' " Little Causeway," in the said burgh of Forfar, fell over a ' stone in the pavement of the said street, whereby he ' was severely injured, to his loss, injury, and damage V The Lord Ordinary then pronounced the following inter- locutor : — ' Finds that the pursuer is entitled to an issue, framed in ' appropriate terms, to the effect that, at the time and place ' aUeged by him, the streets of the burgh of Forfar were, ' through the failure of duty of the defenders, as represent- ' ing the burgh, in an unfit and dangerous state for passen- ' gers and that the pursuer thereby sustained the injuries ' complained of, and to that extent repels the first and third ' pleas in law for the defenders, which have been stated as ' sufficient to exclude the action ; and appoints the cause ' to be enrolled for further procedure. '210 DIGEST OF DECIDED OASES, Dargik r. Ma- ' NoTE. — Tlio quostion involvod in this i'i\se appears to tlio LoihJ oKTRATKs ASP . Ordinary to bo one of difficulty. cTui^Fo^AR. ' Tlie action is directed against the Magistrates and Council of the Liiibiiitj- for ' BuTgh of Forfiff, ns representing the coniinmiity of tho Burgh, and injiiriBs'oansedi jj. g^^j^g ^^ roeovor reparation for an iiyury, allogod to have boon oLtS^ron ' sustained by the pursuer-, an inliabitant of Forfar, tlirough tho insuf- pviblio stj-eets. • ficiont and dangerous condition of one of tlie streets of tlio Burgh on ' the night libelled. It is thus an action against tho Bui-gh for ' damages arisuig from tho unsafe state of its streets, and tho general • question raised is, — 'Wlietliov a Royal Burgh is liablo in sucli a claim i ' The question appears to tlie Lonl Ordinary to turn mainly on ' the point, — Whether a Eoyal Burgh, as a Corporation, is under an ' obligation to koep its stvoots in a safe and sufficient state. If such ' im obligation is by law imposed on tlie corporation, tho failure to ' fulfil it seems to give riso to a claim against tho oin-poiiition, at • tlie instance of injured partios, for tho ooiisoquoucos of that failure. ' Some duties ai-e by law or statute imposed on the Magistrates or ' Administrators of a Ihirgh, which ni-e not inouiubont. on tlio ' Burgh as a Corporation. Tims a Bui-gh is not liable for tho • failure of duty of its Magistrates as to repvossing a riot— Oanip- ' bell against tlie Magistrates of Banff, 28tli February, 1744, ' Mor, 2504-5. Jurisdiotion and ]\Iagistraoy are not proper duties ' of the Burgh. They are functions devolved on its Provost and ' Bailies, rirtiifi' ofUcn indeed, but indopendontly of tlie oommunity ■ at largo, and in which, accordingly, tho Councillors of tho Burgh ' have no right to piu-ticipato or intorfore. Again, duties may be ' imposed on the Magistrates and Council of a Burgh by special ' stiitute, as a solocted body of statutory delegates or Commissioners ' for a public purpose, but not as reprosonting tho Burgh ui tliat ' niattor, and so that a failure of duty on their part will not involve ' the coimnunity in tho consoquenoos thonco arising. This is tlie ' case as to tlio levy of the ^Vunuity Tax in Edinburgh, as determined ' by tho decision in the Ministers of Edinburgh against tlie Magi- ' strates and Town Council of Edinbiwgh, 28th May 1846. 7Dun- ' lop, 663, affirmed on Appeal 6. Bells, App. 509, whoro it was found ' that the performance of this duty, (tlie appointment of Steutmas- ' tors.) was imposed on the Magistrates and Council as a body of ' statutory commissionoi's, and not upon tlie Burgh itself through ' t^em as its representatives and adniinisti-ators, and that the pnv ' party of tlie corporation could not be subjected to liability for acts ' done by them when not acting in their proper official capacity. 'On the other hand, there are duties which come indeed to be ' exercised by the Magisti-ates or Administrators of a Burgh as the ' organs of the conuminity, but wliicli are proper duties, or obliga- ' gations, on the Burgh itself, and for which it has been held tliat ' the Burgh is liable in damages to the injured party when they have ' not been preperly performed. A well known oxaniplo of tliis kind ' is to be found in the cases formerly so numerous, as to the escape ' of prisoners, whei"e, on the ground tliat tlie Burgh itself was under ' a corporate obligation to have sufficient prisons, actions of damages DIGEST OF DECIDEIJ CASES. 2 1 1 ' were sustained against the corporation at the instance of Creditors Daroie ». Ma- ' whose debtors had not been duly detained in custody. *^^™'V','f '*"" ' The question in the present instance seems to be, — Whether the cilofFobfab. ' duty or obligation of maintaining the streets of a burgh belongs t^o Liability for ' the one or other of these two classes. It is clear that there is a muni- JJ']"™^ caused ' cipal duty somewhere, either on the burgh or on its administrators obstruction on ' only, to have the public streets in proper order. If that duty lies public streets. ' solely on the magistrates or administrators, like the conservation ' of the peace or the levy of the Annuity Tax, the present action is ' untenable. If it lies on the burgh, and its administrators, as the ' organs of the burgh, like the maintainance of priscms before the ' New Prison Act, the present action seems to be competent. ' In the case of Ban:^ already referred to, M. 2505, Kilkerran ' observes, that the only case ia which a community is liable for the ' delict of their magistrates, is that of their suffering a prisoner to ' escape, which is founded upon this reascm, that the burgh is by ' law bound to have sufficient prisons, and consequently is answer- ' able for the keepers thereof. This dictum may be so far an auth- ' ority, excluding the present ground of action, but subsequent cases ' point to a different view. In the case of Threshie, (The Dumfries ' Road Trustees,) against the Magistrates of Annan, 11th December '1845, 8 Dun. 276, it was held, that the magistrates and town- ' council of the biu-gh were bound to maintain the street in repair ' out of the common funds of the burgh. The decision of the Lord ' Ordinary in that case, adhered to by the Court, found that the • defenders, the Magistrates and Town Council of the Eoyal Burgh ' of Annan, are bound to keep and maintain in repair the High Street ' of the said royal burgh, out of the common funds belonging thereto. ' In that view, the duty of maintaining the streets comes to be as- ' similated to the other duty of having sufficient prisons, and it is ' difficult to say, that the same consequences should not ilow from ' a breach of duty in the two cases. ' The decision in Innes against the Magistrates of Edinburgh, ' 9th February 1798, seems to have proceeded on this principle. ' The authority of that case is weakened by the anomalous form of the ' action, i^ as would rather appear, it was directed only against the ' magistrates, and doubts have since been thrown out as to its sound- ' ness. But it has not been overruled or condemned by any subse- ' quent authority, and in Lord Medwyn's opinion, in the case of the ' ministers and magistrates of Edinburgh, it is treated as having ' added since the time of Kilkerran, another example of liability of ' corporation funds for the neglect of magistrates, and this on the ' ground that the magistrates are bound out of the common good to ' keep the streets of a burgh safe for the use of the community, and ' consequently, that the corporation funds should be made ^^s-pon- ' sible for a neglect to make the requisite expenditure out of them * for this purpose. •. j -j. ' It may appear a singular result, that the community and its ' funds should thus be liable for the unsafe state of the pubhc streets, ' when a corresponding liability would not exist if the streets were 212 DIGEST OF DECIDED CARES. Dakgie v. Ma- ' under the management of a public commission. But the_ answer GisTRATEs AND < ^q t^ig difficulty ssems to be, that there is an essential difference cTl^orf^. ' between a trust and a corporation. A trust is not a person in the Liabaity for ' eye of the law. It is created for certain purposes, but the duties injuries caused i jjnposed under it are laid on the trustees, and for any failure of obstiSor'on' duty, the wrongdoers alone can be responsible. A corporation is public streets. ' a legal person. It cannot, it is true, commit crimes or proper ' dehots ; but it can undertake corporate duties, it may fail to dis- ' charge them, and the failure may be visited civilly on the party ' failing, that is, on the corporation which undertook the duty, and ' which did not discharge it. If it could be maintained as an abso- ' lute rule, that a corporation could not pndertake duties, the case ' would be different ; but this extreme view seems untenable, and ' the case of actions of damages for escape through the insufficiency ' of prisons, seems conclusively to show at once, that there may be ' a corporate duty, and that damages may be recovered from the ' corporation for its non-performance. ' In the law of England, from which the principles applicable to ' pubUc trusts under this head seem iu a great measure to have been ' brought or revived, it does not seem impossible to hold that a cor- ' poration may have duties, and may be liable in damages for a failure ' to discharge them. The Mayor of Lynn v. Turner, 1 Cowper's ' Eeports, 86 ; Henley v. tlie Mayor and Burgesses of Lyme-Regis, ' 3 Moore and Payne, 278. ' On the whole, therefore, the Lord Ordinary considers that the '- preponderance, both of principle and of authority, is in favour of ' sustaining the present action. ' It is objected that the pursuer himself is a member of the com- ' munity which he is seeking to subject. But this seems no bar to ' the action. It is presumed that an inhabitant, or even a burgess ' of a burgh, could have maintained an action of damages against the ' burgh for the escape of his debtor from the burgh prison. The ' pursuer is one of the lieges for whose benefit the duty of maintain- ' ing the streets is imposed, and he cannot, it is thought, be exclud- ' ed from reparation of the injury, suffered by himself individually, ' because he lives in the burgh where the duty has been neglected. ' The Lord Ordinary feels that the statements in the pursuer's ' record are not framed throughout with all the logical precision ' which would have been desirable in reference to the nice principles ' on which the action depends ; and he sees that much may be said ' on the question of fact, and under the circumstances of the case, to ' diminish or reduce to nothing the pursuer's cause of complaint. < But he does not think that he would be justified in throwing out ' the action on such grounds.' The defenders reclaimed, and argued,^ — The Magistrates were not called for their separate interests, but as represent- ing the corporation. In this capacity they were accused of two wrongous acts, or failure of duty, — the placing of the DIGEST OF DECIDED CASES. 213 stone and the imperfect lighting of the street. As to theDAUGiB«.MA- first of these, the averments of the pursuer were defective. Towk-Coun" There was nothing to shew that the community, acting as^'^^fj"^^^!^: they only could act, not through the Magistrates alone, buti^^^soausedby through the Magistrates and Town Council, in councilSotfononthe assembled, had placed the stone there (Ersk. 1, 4, 22). There ^"''''° '*'''*'• was no averment that there was any authority given by the Magistrates and To\yn Council to do the act complained of This averment was essential, for the alleged act, by ex hypothesi, wrongous, it could not be held that any of the Magistrates had an implied authority to do it. Were the streets in reality the property of the burgh ? If so, there might be ground of action. In the case of jails, an Act (1597, c. 217) was required to make Magistrates liable for their building and repair. The streets, however, were not the property of the Magistrates or community. They were inter regalia (Bell's Prin.; see 660. Ersk. 2, 6, 1 7, Millar, M. 13, 527). No analogy, therefore, could be drawn from the obligations of proprietors ; but it was said that the Magistrates and community were conservators of the streets. In matters of police, the Magistrates and Council did not represent the corporation, but the public interest. Their power was not delegated by the community, but by the Sovereign, and was created by law to effect certain objects, not for the advantage of the community of the burgh alone, but of all the lieges. The case of the Magistrates of Banff was a stronger case than the present. The pursuer referred to the case of Thresh le, 1 Ith December 1845 ; but it only went to show that the funds of a burgh ought to be used for the repair of the streets, which was not denied, but it did not follow that the community was answerable if the Magistrates neglected to use their funds for that purpose. {Lord Ivory — "Who, then, is liable?) Practically, the Magis- trates ; but this action is not directed against them indivi- dually, but against the community. LoBD President. — We have here two pleas to be disposed of. The question appears to me to come back to the case of Innes v. The Magistrates of Edinburgh. That case exists only in fragments, and they contain little that can affect our decision. I am therefore inclined to adhere j but the facts alleged here are much more slender than in the other case, and at the trial a very small falling short of 214 DIGEST OF DECIDED CASES. Daeoie v. Ma- the averments would take the case out of the category of neglect of To^-Oou™'^'^*y on the part of the Magistrates. cilofForfab. Lord Ivory. — I concur. In the case of the Ministers of Edin- Liabilityforin- burgh V. Tlie Magistrates, I had occasion to make some observations Improper^ob-^ "'^ ^ similar question, especially as to the line where responsibility struotion on the begins and ends. The line is subtle, but I cannot, in the present public streets, case, draw it more closely than I did then. Neither in it, nor in the case of Innes, is there much upon which we can shape an authority for subsequent decisions ; but the general principle of these cases is not excluded here. The case of TJireshie throws more light on the question. It determined the liability of the community, and the parties who acted under their authority, to perform certain duties. From this to the case of Innes there is but a step ; and in all the subsequent cases, in which the case is referred to, there is nothing to shew that it is not stiU a standing authority. In Duncan V. Findlater the case is laid upon statute, and the real question was, whether the trustees were vnthin or without their duty. As to the second point, I cannot help tliinldng that if all the dates and details had been very candidly stated, there would have been little of a case. Lord Curriehill. — I concur with the Lord Ordinary, in holding that the first and third Pleas in Law for the defenders are not suffi- cient to exclude the action. The first defence is, that the pursuer has not made a relevant statement of misfeasance or neglect of duty. The pursuer states, in the record, that the defenders are the conservators, managers, and superintendents of the public streets of the burgh, and have annually expended large sums in forming, improving, maintaining, repairing, and lighting these streets ; and one of these streets is known by the name of the 'Little Causeway,' the south footpath of which was recently paved or repaired, partly at the expense of the magistrates, and partly of the proprietors ; that this footpath is part of the public street under the charge of the defenders, as .above mentioned ; that on that footpath a large stone, about five feet long, and fourteen inches square, was placed, whereby more than two-fifths of that footpath was obstructed ; that the defenders are the parties to whom the stone belongs, and who placed it in this dangerous position; and that this obstruction, on a dark night in the month of March 1853, caused a severe personal injury to the pursuer, for which he now demands redress. He expressly avers that the obstruction was improper and dangerous, and that the defenders not only failed in their duty in allowing it to remain in the public street, but were themselves the party who placed it there. Assuming the truth of these statements, I think they are relevant. Even if it were not the duty of the defenders to keep the public streets of the burgh free from dangerous obstructions, yet if they themselves were the party who actually placed such a dangerous obstruction thereon, (as is alleged in the 6th article of the condescendence,) I think that such a ' misfeasance' would be a relevant ground of action. But the more important question is. "Whether the corporation of a royal burgh is under a legal obligation to keep the public streets DIGEST Of DECIDED CASES, 2 1 5 of the burgh free from dangerous obstructions 1 If this were a new Dakgie v. Ma- question, it might require much research and consideration; but Igistkates and think it was settled, in the case of Innes v. The Magistrates o/Jl^orfak. Edinburgh, that such an obligation is incumbent upon the corpora- Liability for in- tion. The report states that the Court were unanimous in thinking 1™'*^°'^"^®'^,*''' the action well-founded against the magistrates. One of their mostSctoonthe important duties (it was observed) is to take care that the streets of public streets. the city are kept in such a state as to prevent the slightest danger to passengers. They are liable for the smallest neglect of this duty ? The party against whom the decree for damages was pronounced in that action, was the Corporation of the City of Edinburgh. Doubts which were suggested as to this have been obviated by an examination of the process itself, from which it appears that, al- though the individuals who had been in the Magistracy when the accident happened, as well as the Corporation, were called as de- fenders, the action was not insisted on against these individuals, and the Corporation itself was the only party against whom the decree was pronounced. This appears from the terms of the decree itself, and also from an express statement to that effect in a second re- claiming petition which was lodged for the Magistrates, as represent- , ing the Corporation, after the decree in favour of the pursuer Innes was final, by there having been two consecutive judgments of the Inner House against them ia his favour. The object of that peti- , tion was merely to endeavour to establish a claim of relief ia favour of the Corporation against any surplus funds which might eventually be left in the hands of the trustees for the College; and it is there distinctly state'd that the Corporation funds were primarily liable, in virtue of the final decree, to Innes. In the case oi Threshie, 11th December 1845, it was again ex- pressly found that the Corporation are bound to keep and maintain in repair the streets of a royal burgh out of the common funds belonging thereto. Holding that the obligation to keep the streets of the burgh free from dangerous obstructions is incumbent on the Corporation, I further think that the plea, that the funds of the Corporation are not answerable for the consequences of a breach of that duty, or of failure to perform it, (being the third plea maintained for the de- fenders,) is not well founded. That plea is directly at variance with the judgment in the case of Innes. Nor do I think that the principle recognised in that case is at variance with any subsequent authority. The cases in which it has been held that funds raised by taxation for specific purposes— such as the making and the repairing of public roads — cannot be applied in relieving the administrators of the funds, or contractors with them, from the consequences of their misconduct or negligence, appear to me to depend upon dif- ferent principles ; and I do not see that, in the decision of these cases, the principle of the case of Innes was called in question. In the case of royal burghs the Corporation itself is the obligant, although, like all other Corporations, it, must conduct its business through its office-bearers. And if it contravene its obligations, or 216 DIGEST OF DECIDED CASES. DAEGiE».MA-fail in performing them, the Corporation, like any other obligant^ GisTRATEs AND must bs liable to make good the consequences out of its general cilofPorpae. funds. And accordingly, it has been repeatedly decided that the Liability forin- common good of a royal burgh was liable in payment of the damages juries caused by jjj(,yj,j,g^ to a creditor in consequence of his debtor having been struotion on the allowed to escape from prison, or having been too much iadulged public streets, while detained there. And it is a mistake to say that in cases of that class, the obligation to make such indemnification out of the common good, was enforced by statute. If the mere circumstance of the obligation being statutory were of any relevancy, it would operate the other way ; because in the cases regarding road trustees and others, above referred to, the trusts were created by statute. But although an obligation to erect and maintain jails was imposed by statute on the Corporation of every royal burgh, the statute is silent as to the party who was to indemnify those who might suffer from a failure to perform that obligation ; and the Corporation, on the same principle on which it is liable for a breach of the duties imposed on it by statute, must be liable for a breach of duties arising from its very constitution. Whether the Corporation may have relief against any of its office- bearers, to whose fault or negligence the breach of its obligation may be attributable, is a different question. But the Corporation itself being in the position of an obligant, it is the party who must, in the first instance, make good the funds, both for fulfilling its obligations, and for indemnifying those who may suffer by the breach thereof. While I think that the Lofd Ordinary's interlocutor is right, in holding that the first and third defences are not sufficient to exclude the action, I think it requires further consideration whether the issue should be in the precise terms, or to the precise effect set forth in the interlocutor. In particular, if the pursuer intends to insist on what is called the misfeasance alleged in the 6th article of the condescendence, the issue is, perhaps, not expressed so as to bring out that question. But this is a matter of subordinate importance. The Court adhered. The case subsequently went to trial, and the jury returned a ver- dict for the pursuer, damages £400. Geeenhokn ». 1 Sth June 1855. — ^Alexander and James Greenhorn, "^M?™^" P'^'ii'suers, against Addie & Millar, Defenders.— I'&th OoUateral rela- June 1855.— 17 D., p. 860. tives not en- ^ titled to recover in^urreB°to *de- ^^^^ ^^ ^^ action of assythment or damages at the in- ceased relative, stance of the brothers of a person, who was alleged to have been killed while a miner in the employment of the de- fenders. It was alleged that he was killed by the fall of DIGEST OF DECIDED CASES. 217 a stone from the roof of the pit, wjiich was insufScieiitly Geeenhobn ». supported. The action was founded as follows :— ' That by ^^" ' the death of the said John Greenhorn, the pursuers have^^^^^**^™^™^^" ' been deprived of the society and sympathy of a kind titled to recover ' brother, and they have also suffered deeply in their feel-infurfes^to de- ' ings and interest; and for the loss, injury, and damage ''®*^''*'^®^**^'^®" ' so sustained by them, the defenders are bound to make ' suitable reparation.' > The defenders pled that the pursuers had no title to sue such an action, and the Lord Ordinary reported the case, explaining at length the authorities on the point. The Court sustained the objection, and dismissed the action. Lord President. — Although I am not prepared to give any judg- ment in reference to a case which may have other elements in it — I mean elements of criminality in the origin of the death, or of pecuniary loss, direct or mixed, or other elements of that kind — yet with regard to the case which now presents itself, I do not think that we have any principle or precedent for sustaining the title of the collateral pursuers. Lord Ivory. ^It seems to me that this is a claim for civil repara- tion; and being so, it is in its whole nature distinguishable from assyth- ment. As such, it must he supported as a claim for individual wrong. There is none here, and therefore I am of opinion that the action here is not supported, and cannot be supported, unless we extend the principle that the next of kin, however remote, shall enjoy the privilege of bringing such actions. 4th July 1855. — ^Alexander Davidson, Pursuer, against Davidson v. The Monkland Kailway Co., Defenders.— 17 B., 1038, jS^X 27 Jur. p. 541. Si'Jclas to fences — fault The pursuer's child, aged between two and three years, ™ P™"^''- was found drowned in the Forth and Clyde Canal, at a short distance from the mouth of a lade or water course which forms a feeder to the canal. The banks of the lade are the property of the defenders, the Monkland Kailway Co., whose line runs alongside of the lade, and the pursuer's house, which he held under the tenant of the Railway Company, is on the opposite side of the line. Neither the Railway nor the lade are fenced at the spot. 218 DIGEST OF DECIDED CASES. Davidson v. The pursuer sued the Railway Company and the Canal Raii'way Co. Company for damages for the loss of his child, the locality R^fway Co! a«^^™g ^^^^ ^° ^^ unfenccd and dangerous state. to fehces— fault The defenders maintained, that they were not responsible, in respect that it was not a place which they were bound to protect with a fence, and that the culpa of the child's death rested on the pursuer in permitting so young a child to wander unprotected. After taking evidence, the Sheriff (Alison,) pronounced the following iaterlocutor : — Glasgow, ] 5th December 18.53. — ' Having resumed con- ' sideration of the case, and heard parties procurators upon ' the pursuer's appeal, and thereafter reviewed the proof and ' whole process. Finds, that the feeder of the canal, as ori- ' ginally constructed by the Canal Company upon their own ' ground, was attended with no danger at all to the neigh- ' bourhood, even so far as young children were concerned, ' seeing it had shelving banks, and was very shallow, not ' exceeding from eight inches to a foot in depth, so that ' there was no danger of life attending it ; Finds, that it ' became dangerous for the first time when the Monkland ' Railway Company took possession of the site of the feeder ' of the canal, in virtue of the powers contained in their ' Act, and proceeded to erect on the course of the stream, ^ close to the edge of the water, a variety of constructions ' which entirely altered its character, and rendered it very ' hazardous to the neighbourhood : Finds, that these con- ' atructions consisted chiefly in running an embankment of ' considerable height along the whole course of the stream ' with a front to it, everywhere steep, and at some places ' perpendicular, which being carried out into the stream had ' the effect of rendering it deeper and more rapid, and very ' dangerous to persons living in the vicinity : Finds it ' proved, that in consequence of the alterations upon the ' course of the stream, several children have fe,llen into it, ' one of whom, besides the pursuer's child in question, was ' drowned, and the Railway Company's engineer fell into it ' himself and was with diflBculty got out : Finds it proved, ' that in rainy weather there is a considerable flow of water ' down this feeder into the canal, which is about twenty DIGEST OF DECIDED CASES. 219 ' yaoxls beneath it, sufficient in such swollen state to sweep Davidson v. ' down a child falling into it to the canal : Finds, that the eai°^at Co. ' Railway Company were aware of the danger of this locality, ^^^q°^ ^^ 'and on that account had made it a rule to have, as their direct tofenoes—faiUt ' tenants of the houses they had buUt in the neighbourhood, ' persons only withoutchUdren, but that notwithstanding this, ' they took no steps to fence off the Railway to prevent danger ' to persons falling into the stream : Finds, that the house ' in which the pursuer lived is close upon the Railway, on ' the other side of the feeder of the canal, and that he came ' there as a subtenant with several children, but neither of ' the defenders took any steps to prevent danger to the ' children from the close proximity of the feeder to the pre- ' cipitous banks : Finds it proved, that on the occasion in ' question, the piu'suer's child, who was about three years of ' age, and to whom its parents were very attentive, wandered ' out of the house in the forenoon with a hammer iu its ' hand, and was not seen again till it was found drowned in ' the canal below its junction with the feeder: Fiuds it ' proved, that the child's hammer was foimd in the lade or ' feeder to the canal, at a Kttle distance from the pursuer's ' house, and that a splash was heard, and a cry got up ' among some children in the neighbourhood, that the child ' was being carried or swept down the lade : Finds it proved, • from these Circumstances, joined to the finding of the child's ' body drowned in the canal, that it had fallen into the ' feeder at the place where the hammer was found, and was ' swept down the stream into the canal: Finds it proved, ' that there were persons on the Railway, between the pur- ' suer's house and the canal, at the time of the accident, who ' did not see the child going to the canal, which they must ' have done had it made its way down to the canal that way : • Finds, that the pursuer was a working miner inhabiting a ' house low rented, and was earning wages at the rate of ' thirteen or fourteen shillings arweek, and that he was ' wholly unable to pay for a pei-son to look after his infant ' children, and prevent them straying from the house: ' Finds, in point of law, that any party who has made an ' excavation or erected a structure, or made an altei-ation on ' the natui-al surface of the ground, of such a kind as to be in pursuer. 220 DIGEST OF DECIDED CASES. Davidson e. ' attended With danger to the lieges, is bound to take all Eailway Co. ' reasonable precautions against the danger thence arising, as EaifwayCcf as ^^ fencing in a coal-pit, or fencing a dangerous precipice, tofences— fault ' or the like, to prevent the danger arising from the arti- ' ficial change made on the natural state of the ground : ' Finds, that this does not apply to danger arising from ' natural causes, such as from precipices or running streams ' and the like, as to which every party is bound to take care ' of himself or his children, or those dependent upon him : ' Finds, that the Railway Company, having built the houses ' in the close vicinity of the Railway and feeder, and drew ' the rents, and derived the profits thereof, were iri an ' especial manner bound to guard against the danger to the ' inmates of these houses, from the alterations they had ' made for their own profit and advantage on the previous ' undangerous state of the feeder to the canal and its banks : ' Finds, that having neglected to fence it iu any way, they ' are liable in damages to the pursuer on account of the loss ' of his child: Finds, that the only culpa that can be at- ' tributed to the pursuer to diminish or take away his claim ' for damages, is that of having come with his eyes open into ' a dangerous locality, but finds that in law it is not sufB- ' cient to take away his claim for damages, seeing the dan- ' ger was of human creation, not the work of nature, and ■ that he was entitled to rely upon the parties who created the danger implementing their legal obligation to take aU reasonable means to avert it : Finds, so far as concerns the Canal Company, the other defenders in the action, that ' their fault consisted only in not having steps taken to ' compel the Railway Company, after they had created the danger, to lessen or avert it : Finds, however, that this is not sufficient to subject the Canal Company in damages for the loss of the child : Therefore, alters the interlocutor complained of. Decerns against the defenders, the Monk- land Railway Company, for £50 sterling of damages, for the loss of the chUd in question, with interest from the date of citation ; and finds them liable in the expenses to the pursuer, of which appoints an account to be given in and taxed by the auditor : Assoilzies the Canal Company, the other defenders, from the conclusions of the action as DIGEST OF DECIDED CASES. 221 ' against them, but in respect of their not having taken any Davidson ». ' steps either to guard against the danger arising from their ^°wat o'o. 'feeder itself, or to compel the Railwaj'- Company to others, Pursuers, against The Baetonshill Coal Co.,i^f™*^„°4^!^: Defenders.— B. 17, p. 1017. Jur., vol. 27, p. 518, andnes^to aw^ 3. M'Queen, 206. the fault or ^ negligence oi a feUow-work- The action was for damages at the instance of the widow man atthe same j.i±\j oj^uivi a ^ 1 -n J • common em- and children of William Reid, a mirier, who was killed lUpioyment. 222 DIGEST OP DECIDED CASES. Clabk or Reid, ascending a coal-pit belonging to the defenders, and whose HILL CoAL°Co' death, it was alleged, was caused by the fault or negligence dent^Non-'' ^^ ^^^ defenders, or of those for whom they were respon- liawiityof em-gibie. The facts appeared to be that Reid was killed by ployer for inju- . hit, • i-ii, j lies to a work- the overturning oi a bucket, or cage, m wmcn ne ana an- ^e'fa^Tof ''''other workman were being drawn up from the pit by means fdfow^work* *°^ ^ Stationary engine at the pit-mouth; that Shearer, who man atthe same was employed by the defenders, had charge of the engine, pi^ent"" and had allowed the cage to be drawn up considerably higher than it ought to have been, and the result was that the cage was overturned, and the men thrown out and killed. It was proved that Shearer was generally held a trust- worthy man, and of good character. The LoBD President directed the jury that if they were satisfied that the injury was caused by the culpable negligence and fault on the part of Shearer in the management of the machinery, the de- fenders were in law answerable. — The Z)e/«?i(iere excepted to this direc- tion, and desired his Lordship in point of law to direct the jury that if they were satisfied that the defenders used due and reasonable dili- gence and care in the selection and appointment of Shearer as engine- man, and furnished him with proper machinery and aU necessary means for the performance of these duties, then the defenders were not in law answerable for the personal fault or negligence of Shearer in the management of the machinery. The judge declined to give this charge, and the jury returned a verdict for the pursuers. A Bill of Exceptions came before the Court—the defenders contended that there was no special contract or warranty of safety to the work-- men, and here there was no blame on account of deficient machi- nery, and both parties assumed that Shearer was an unexception- able person in general character and qualifications for the duty of engineman. As regarded two men, both in a common employment, they were pari passu, and bound both to protect each other, and to take care of themselves. A servant was the same in this respect as a piece of machinery, and if the master had taken due care in his selection, he is no more liable for a latent flaw in his character than for a latent flaw in a piece of iron. How far was the principle con- tended for by the pursuers to be carried ? Was the master to be hable for a sudden fit of nervousness, such as might accrue to the best and coolest workman ? By common employment, all that was meant was that they were aU engaged at one place and time work- ing for one common object as was the case here. An accident or neglect on the part of the workmen was just one of the risks which the men undertook in entering on the employment. The pursuers argued that even were the law to be as contended for by the defenders in regard to common employment, the present was not a case of common employment in the sense required. The one man worked DIGEST OF DECIDED CASES. 223 in the pit as a common collier, while the other had the charge ofCLARKorBKio an engine for raising the coals and the men to the surface. &c., v. The Lord President said,— As to the general question of respon- ^1"^ 0^1^00 sibility for the fault of a servant who injures his fellow-servant, I Ooal-pi°tcoi-°' have little to say apart from what was said in the case, Gray v. Brassy, dent— Non- It does not seem to me, however, that Shearer and the men whopwirToHniu" were injured were m any sense " fellow-servants." As to the quali- ries to a work- fications of Shearer, there can be no doubt that he was in thisj?^","^™^"* ^y instance culpable, and that fact must affect the estimate of his gene- negl^enoTof a ral character. He was performing a duty which the defenders owedfeUow-work- to their workmen, and they are responsible for him as the party ™^^"^^^™'' sent by them, and who represents them in this matter. p%ment!™" Lord Ivory. — I am satisfied that the position of Shearer does not come up to that of colaborateur. He had superintendence to some extent, and suflBlciently to make him a representative of his em- ployers, and to separate him from the other workmen. We are told that his appointment was the mere selection of a human machine. That illustration, if good for anything, would carry us the length of denying the liability of the employers, even to such strangers as might be hurt by the culpa of the servant. Lord Cureibhill concurred. — Shearer was employed as engine- man to raise the men from the pit. That was his peculiar duty, and the men who were kUled had nothing to do with that duty. The characters in which they acted were quite distinct. The workmen in doing their duty, were working for their employers. In the other case, the master is working for them. These are reciprocal duties and obligations. The question, therefore, which has been so much discussed in England, has no room here, and is not open to us. Lord Deas. — The reasoning by which it is attempted to be made out that the master is not liable, is this — It is said if the master, exercising all reasonable care, provides machinery which is to all appearance perfect, he is not liable for latent defects, such as the imperfect welding of an axle in. such machinery; and, in like manner, it is argued he is not liable for his servant, selected with all due care, as properly qualified, and who is likened to a sort of human machine. But the argument goes too far; for in the case supposed the master is not liable even to third parties any more than he is to his servants for injuries received from latent defects in the machine. And it would follow from the argument that if due care was exercised in selecting a coachman or farm servant, the master would not be liable, although the coachman, or servant, should cul- pably drive over and kill the child of a third party— the reverse of which has been repeatedly decided. There is, therefore, a difference in liability for men and machinery. Moreover, there are admittedly cases in which a. master is liable even to his servant, for the fault or 'negligence of another of his servants of which O'Bryne v. Burn (8th July 1854) is an instance. There, no doubt, the girl injured was subject to the orders of the overseer, whereas the colliers here were not under the orders of the engineman; but I think the two cases faU under the same category. I do not say that there may 224 DIGEST OF DECIDED OASES. Clark or Ebid, not be a case of common employment in which one servant shall be &o., V. held to take the risk of the fault or negligence of a fellow-servant. HILL Coal Oo.^o such case has yet occurred for decision in Scotland, and I wish Coal-pit acoi- to give no opinion on it till it occurs. But such is not the nature KabiUtT of em- °^ ^'^^^ ^^^^' ^^ which it was the duty of the master to convey the ployer for inju- miners safely up and down the pits without subjecting them to ries to a work- injury from fault or negligence, and if he delegated this duty to an- a™ aulTor ^ other as his representative, he became equally liable for the fault negligence of a and negligence of that representative as for his own. fellow-work- EoKeptton disallowed. manattnesame -^ common em- The defenders appealed to the House of Lords, and, after ployment. '■ ^ . . . argument, the case was delayed for consideration, m conse- quence of the general importance of the question involved, as affecting the ' laws of England and Scotland, At the advising on I7th June 1858, The LoED Chancellor said : ' This was an appeal against four ' interlocutors of the Court of Session, made in an action raised by ' the respondents against the appellants, whereby they sought to ' recover from them compensation in damages for the loss they had ' sustained by the death of William Eeid, the husband of the respon- ' dent, Elizabeth Clark or Eeid, and the father of the other respon- ' dents. ' The facts stated by the respondents, Elizabeth Clark or Eeid, ' and her children, as the grounds of their claim, were as follows : — ' That in, and previously to, the month of September 1853, the appel- ' lants were owners of, and were engaged in working a coal-pit called ' the Dykehead pit, and that "William Eeid was a miner, in their ' service : That, according to the usual ^urse of working the coals ' in this pit, the miners were let down mo, and drawn up from the ' pit, in a cage, which was worked by a long rope running over ' a pulley, fixed by machinery at a considerable height above the ' mouth of the pit, and worked by a stationary steam-engine, fixed ' at a few yards distant from the pit : That, on the 17th September ' 1853, James Shearer was the engine-man, employed by the appeL ' lants to attend to this engine, and that it was his duty to attend to ' the drawing up and letting down of the cage, so that the workmen ' might be moved up and down safely : but that he, disregarding his ' duty when the cage was coming up with two workmeii in it, of whom ' Eeid was one, negligently omitted to take the proper means for ' stopping it, at or a few feet above the mouth of the pit, where there ' was a platform, on -which the men ought to have got out, and ' allowed it to have been carried with great force to the top of the ' machinery, in consequence of which it was upset, and the men ' were thrown out and killed on the spot. ' On these facts the respondents, being the widow and children of ' Eeid, claimed from the appellants, as the employers of Shearer, by ' whose neglect the misfortune had occurred, compensation in da- ' mages, on the ground that the employers are chargeable with the DIGEST OF DECIDED CASES. 225 consequences resulting from the neglect of the servant -whoni they CLAKKorBEiu, employ. ' ' &o. «. ' The appellants (defenders below), by their pleas inlaw, insisted, %'^^1?o.'''' first, that no relevant ground of action was stated ; and, secondly, Ooal-pit aoci- that these facts alleged were not true. The Lord Ordinary repelled b^^t'^^f "em- the defence of want of relevancy, and the First Division adhered pioyer for in^- to the interlocutors of the Lord Ordinary. ries to a work- ' The issues were then framed, for the purpose of trying the facts, ^^\Xf^^! and were settled as follows : — First, AVTiether the defenders were, giigenoe of a in the month of September 1853, in the occupation, as proprietors *«^°w-'^°'''^- or lessees, of the coal-pit at or near BaiUieston, caUed the Dykehead^^^"^^em^* or Bargeddie pit? and whether, on or about the 17th day of Sep- ployment. tember 1853, the said deceased William Eeid, while in the employ- ment of the defenders in said pit, received severe and mortal inju- ries, through the fault of the defenders in the management of the machinery for lowering and raising the miners or colliers at said pit, or part thereof, in consequence of which he immediately, or soon afterward, died, to the loss, injury, and damage of the pursuers. These issues were tried before the Lord President, and evidence was given for the purpose of showing that the accident arose from the carelessness of Shearer. There was no evidence tending to show that Shearer was incompetent to the due discharge of his duty ; on the contrary, all the witnesses described him as a steady sober man, and a skilled workman, who had been acting as engineman in the appellants' service for several years. ' At the close of the evidence, the Lord President directed the jury as follows: — His Lordship said : " That if they were satisfied on the evidence, ttiat the injury was caused by the culpable negli- gence and fault on the part of Shearer in the management of the machinery, the defenders were, in point of law, answerable." The dfefenders' counsel excepted to that direction, and asked a direction in the following terms : — " To direct the jury in point of law, that if the jury are satisfied on the evidence, that the defenders used due and reasonable diligence and care in the selection and appoint- ment of Shearer as engineman, and that Shearer was fully qualified to perform the duties of engineman, and furnished with proper machinery, and all necessary means for the performance of these duties, then the defenders are not, in law, answerable for the per- sonal fault or negligence of Shearer in the management of the ma- chinery on the occasion mentioned." The Lord President declined to give that direction, and exception was taken. ' The bill of exceptions was argued before the First Division of the Court, but it was disallowed, and the Court, by their interlocu- tor, decreed that the appellants should pay to the respondents the amount of damages assessed by the jury. I believe I am wrong in saying the amount assessed by the jury. The amount was agreed upon, but that is immaterial. From this decision the defenders have appealed to your Lordships. ' The question for decision is, Whether, in the working of a mine, if one of the servants employed is killed, or injured by the negli- P 226 DIGEST OF DECIDED CASES. CLARKorEEiD, ' gence of another servant, employed in some common work, that &a. V. < other servant having been a competent workman, and properly Ooal'oo.^'^ ' employed to discharge the duties entrusted to him, the common Coal-pit aoci- ' employers of both are responsible to the servant who is injured, dent— non-lia- 1 qj, ^ j^jg representatives, for the loss occasioned by the negligence player for inju-' of the other. ries to a work- ' Where an injury is occasioned to any one by the negligence of ae^fS^or**^' aiiother, if the person injured seeks to charge with its consequences negligence of ' any person other than him who actually caused the damage, it a fellow-work- < ijes on the person injured to show that the circumstances were such TO^on ^er^^ ' ^ ^ make some other person responsible. In general, it is suffi- ployment. ' cient for this purpose to show that the person whose neglect caused ' the injury was, at the time when it was occasioned, acting not on ' his own account, but in the course of his employment as a servant ' in the business of a master, and that the damages resulted from the ' servant so employed not having conducted his master's business ' with due care. In such a ease the maxim "respondeat superior" ' prevails, and the master is responsible. ' Thus, if a servant, driving his master's carriage along the high- ' way carelessly, runs over a bystander ; or if a gamekeeper, em- ' ployed to kill game, fires at a hare, so as to shoot a person passing • on the road ; or if a workman employed by a builder in building a ' house, negligently throws a stone or brick from a scaffold, and so ' hurts a passer by, — in all these cases (and instances might be mul- ' tiplied indefinitely) the person injured has a right to treat the ' wrongful or careless act as the act of the master, — quifacii per ' alium, faeit per se. If the master himself had driven the carriage ' improperly, or fired carelessly, or negligently thrown the stone or ' brick, he would have been directly responsible ; and the law does ' not permit him to escape liability because the act complained of ' was not done with his own hand. He is considered, and is reasbn- ' ably considered, as bound to guarantee third persons against all ' hurt arising from the carelessness of himself, or of those acting un- ' der his orders. Third persons cannot, or at aU events may notj ' know whether the particular injury complained of was the act of ' the master or the act of his servant. A person sxistaining injury ' in any of the modes I have suggested has a right to say, ' I was no ' party to your carriage being driven along the road, to your shoot- ' ing- near the public highway, or to your being engaged to build a ' house. If you choose to do, or cause to be done, any of these ' acts, it is to you, and not to your servants, I must look for redress ' if mischief happens to me as their consequence. A large portion ' of the ordinary acts of life are attended with some risk to third ' parties, and no one has right to involve others in risk without their ' consent. This consideration is alone sufiicient to justify the wis- ' dom of the rule, which makes the person by whom, or by whosfe ' orders, these risks are incurred, responsible to third parties for any ' ill consequences resulting from want of due skill or caution. ' But do the same principles apply to the case of a workman, in- ' jured by the want of care of a fellow- workman, engaged together DIGEST OF DECIDED CASES. 227 ' in the same work? I think not. AVTien a workman conti-acts toCLARKorBEiD, ' do work of any particular sort, he knows, or ought to know, to *•=• "• ' what risk he is exposing himself; he knows if such he the nature ^^co^'^ ' of the risk, that want of caie on the part of a feUow- workman may Coal-pit acci- ' he injurious or fatal to him, and that against such want of care his^?;?*~''°°"''*" ' employer cannot possihly protect him. If such want of care should pioyer for i^u- ' occur, and evil is the resiilt, he cannot say that he does not knowries to a work- ' whether the master or the servant was to hlame. He knows thatS^'i' •'^^^^'^''y /111 1 n ji J p ji 1 11 tne fault or ne- ' the blame was wholly that of the servant ; he cannot say that thegUgence of a ' master need not have engaged in the work at all, for he was a party fel^ow-^o'*^" ' to its heing underiiaken. T^oTT^ ' Principle, therefore, seenis to me opposed to the doctrine thatployment. ' the responsihUity of a master for ill consequences of his servants' ' carelessness is appUcahle to the demand made hy a fellow-workman ' in respect of evil resulting from the carelessness of a fellow- workman ' when engf^ed in a cornmon work. ' That this is the view of the suhject in England, cannot, I think, ' admit of doubt It was considered in the Court of Exchequer in ' Priestly v. Fowler (3 M. & W. 1), afterwards fuUy discussed in ' the same Court in Hutchison v. York, Newcastle and Berwick ' Railway Co. ; and acted on by the same Court in Wigmore v. Jay ' (5 Exch, 356). Those decisions would not, it is true, be binding ' on your Lordships if the ground on which they rested were unsound. ' But the circumstance of their having been acquiesced in, affords a ' strong argument to show that they have been approved of ; more ' especially as, in the two first cases, the question appeared on the ' record, and might therefore have been brought before a Court of ' Error. ' I may add, that in the case of Skip v. The Eastern Counties ' Railway Co., in 1853 (9 Exchequer Eeports, page 225), a question ' of a very similar nature to Hutchison's case occurred ; but the ' counsel, in arguing for the plaintiff, tried to distinguish that case ' from those I have referred to, but did not attempt to impugn their ' authority ; and afterwards, in a case in the Queen's Bench, Couch • V. Steel (3 EUis and Blackburn, 402), both Lord Campbell and Mr. ' Justice Wightman referred to Priestly v. Fowler, apparently with * approbation. I think it has been stated at the bar in argument, ' in M'Guire's case, that there has subsequently been a case brought ' before the Court of Error, in which this doctrine has been recog- ' nised. ' I consider, therefore, that in England the doctrine must be re- ' garded as well settled. But if such be the law of England, on ' what ground can it be argued not to be the law of Scotland? The ' law is established in England, and founded on principles of univer- ' sal appUcation, not on any peculiarities of English jurisprudence ; ' and unless, therefore, there has been a settled course of decisions ' in Scotland to the contrary, I think it would be most inexpedient ' to sanction a different rule to the north of the Tweed from that ' which prevails to the south. Let us consider whether there has 228 DIGEST OF DECIDED CASES. CtjABKOrBElD, &0. V. Baetonshili. Coal Go. Goal-pit acci- dent— non-lia- bility of em- ployer for inju- ries to a work- man, oansed by the fault or ne- gligence of a fellow-work- man at the same common em- ployment. been such a settled course of decisions as was contended for by tbe respondents. ' First, it was argued tbat two cases have been recently decided in this House inconsistent with the principle contended for by the appellants, namely, Paterson v. WallMe and Brydon v. Stewart. In the former case William Paterson, the late husband of the ap- pellant, had been killed by the fall of a large stone, while he was working under ground in a mine. An issue was directed to try the question. Whether the death was occasioned by the unsafe state of the roof of the mine, and the negligence and unskilfulness of the owners in having so left it, when the workmen were sent to work there'? Strong evidence was offered to show, that though the roof was in a dangerous state, yet its condition was known to Paterson, so that his death, which arose from his working under it, was the consequence of his own rashness, and not of any neglect of the owners. The learned Judge who presided was strongly of that opinion, and he told the jury that the pursuers could not recover, thus withdrawing the case from their cognizance. The defenders excepted to the direction of the learned Judge, but the Court of Session sustained it. ' Your Lordships, however, on appeal, considered the exception to have been well founded, and remitted the case, with a declara- tion that there ought to be a new trial. Of the propriety of the course then taken by your Lordships, there cannot, I apprehend, be any doubt. The question was not as to any injury occasioned by the unskUfuLness of a fellow- workman, but an injury occasioned by his own rashness, or by the roof not having been properly secured by the owners. The Judge withdrew this question from the jury, deciding the fact against the plaintiffs, and in favour of the owners. This was clearly out of the line of his duty; and the case was therefore remitted, for the purpose of being tried again. This case, therefore, affords no ground for contending that the law of Scotland differs from that of England. ' The other case, Brydon v. Stewart, was very similar. There the miners employed at piecework in working the coal, while in the pit, into which they had been let down in the usual manner, remon- strated with the underground agent as to the state of the mine, complaining, amongst other things, that air was not adequately admitted, and also that their wages were not sufficient ; and, on his refusing them redress, they declined to work any longer, and desired to be drawn up again. To this the agent acceded, and James Marshall, one of the men, the husband of the appellant, was, in the course of the ascent, thrown over and killed. An issue was directed to try whether the death of Marshall was occasioned by reason of the shaft being in an unsafe state, owing to the neglect of the own- ers. The chief point made on behalf of the owners, and to which a large portion of the evidence was directed, was that the men were not justified in refusing to work, and that so the drawing them up was not in the ordinary course of their employment. The learned Judge directed the jury, that if they were satisfied that the men DIGEST OF DECIDED CASES. 229 ' left their work without reasonable cause of complaint, and for pur- CLARKorEisio, ' poses of their own, then the owners were not responsible, even *<=■ "• ' though the injury was caused by the insufficient condition of the ^ c^aToo"'^ ' shaft. But in case the Court should think that not to be a sound Coal-pit aoci- ' direction in point of law, he told the jury to find, secondly, whether 2™*~Mia-iia- ' they were of opinion that the man lost his life owing to the unsafe pioyL forinjS- * and insufficient condition of the shaft. The jury found on theses toawork- ' first direction, that the men had no sufficient ground for refusing ^g°j^^^J^^j5^y ' to work ; and, on the second, that the death arose from the shaft gligenoe of a ' not being in a safe and sufficient state. The Court of Session '^^o'^^-'^o*- ' thought, that as the men had no good ground for leaving their ^^^q^^^*'^^ ' work, the insecure state of the shaft was immaterial, and therefore ployment. • directed the verdict to be entered for the defenders. Your Lord- ' ships came to the conclusion, that the men had a right to leave ' their work if they thought fit, and that their employers were bound ' to take all reasonable measures for the purpose of having the shaft ' in a proper condition, so that the men might be brought up safely ; ' and they therefore, pursuant to leave reserved by the learned Judge ' at the trial, directed the verdict to be entered for the plaintiff. ' The case, it will be observed, like that which preceded it, turned, ' not on the question whether the employers were responsible for ' the injuries occasioned by the carelessness of a fellow-workman, ' but on a principle established by many preceding cases ; namely, ' that when a master employs. his servant in a work of danger, he is ' bound to exercise due care, in order to have his tackle and machi- ' nery in a safe and proper condition, so as to protect the servant ' against unnecessary risks. ' I -think it clear, therefore, that these two cases decided by your ' Lordships do not bear out the proposition contended for by the ' respondents. ' Let us next consider the cases decided in the Court of Session. ' The first case relied on by the respondents was that of Sword v. ' Cameron Q. D. B. M.'493). There are some earlier cases, which ' it appears to me unnecessary to consider in detail. His Lordship ' referred to the circumstances of the case (reported ut supra). ' This case may be justified without resorting to any such doctrine, ' as that a master is responsible for injuries to a workman in his ' employ, occasioned by the negligence of a fellow- workman engaged ' in a common work. ' The injury was evidently the result of a defec- ' tive system, not adequately protecting the workmen at the time of ' the explosions. It is to be inferred from the facts stated, that the ' notices and signals given were those which had been sanctioned ' by the employer, and that the workmen had been 'directed to ' remain at their work near the crane until the order to fire had ' been given; and then that, after the interval of a minute or two, ' the explosion should take place. The accident occurred not from ' any neglect of the man who fired the shot, but because the system ' was one which did not enable the workmen at the crane to protect ' themselves by getting into a place of security. The case, there- 230 DIGEST OB' DECIDED CASES. Clakkoi'Beid, &C., V. Bartonsuh.!- OOAL Go. Coal-pit aopi- dent— Non- liability of em- ployers for in- juries to awork- man caused by tbe fault or negligence of a fellow-work- man atthesame common em- ployment. fore, is no authority for the proposition now insisted on by the respondents. ' Then came the case of Dixon v. Ranken (14 D. B. M., 420, in 1852). Then the accident occurred in consequence of a rope giv- ing way, which had been used to fasten one of the spokes or arms of a crab. His Lordship narrated the circumstances (reported ut supra). The Court of Session held that Dixon, the master, was responsible. The Lord Justice-Clerk (Hope) went fuUy into the question of a master's liability for injury to his workmen occa- sioned by the negligence of fellow-workmen, and clearly and em- phatically st9,ted that the law of Scotland recognised no such dis- tinction as that which had been acted on in England ; and Lord Gockburn stated to the same effect. I feel, therefore, that in advising your Lordships to come to the conclusion that the same principles which had led to the English decisions ought to prevail in Scotland, I have to encounter the very high authority of the eminent judges whose names I have mentioned. But this cannot be avoided, and I think it will appear that the opinion of the Lord Justice-Clerk and Lord Cockburn have not by any means been universally assented to in Scotland. The decision itself might, perhaps, be justified, even though the English rule was ad- mitted; for the evidence went to show that the machinery was defective, and that no proper precautions had been taken by the owners to put it into such a condition as would prevent unneces- sary risk to the lives of those who were employed in the mine ; and Lord Murray expressly stated that to be the ground on which he rested his decision. If the owners had failed in taking due pre- cautions to have proper machinery, this would exclude the opera- tion of the priaciple established by the English cases. Lord Medivyn, the other judge by whojn the case was decided, declining to express any opinion on the doctrine established by the English cases, intimated a strong doubt whether the facts warranted any judgment against Dixon, the owner. Lord Medwyn considered the result of the evidence to be that Neilson, when he lost his life, was not acting in the service of his master ; but that, on the con- trary, alter the action of the crab had been stopped, he remained, contrary to express orders, lounging on the spokes, and so exposed himself unnecessarily to the danger of that which eventually de- prived him of his Kfe. If this were so, the d'ecision was certainly wrong. But it is unnecessary to go into any inquiry on that head. The judgments of the Lord Justice-Clerk and Lord Cockbnrn went clearly on the ground that the death had residted from the negK- gence of a feUow-servant, while the person injured was acting in the service of his master. Those two eminent judges held that in such a case the master was liable. Lord Medwyn and Lprd Murray, on the other hand, took care to explain that they gave no opinion as to the ground on which the Lord Justice-Clerk and Lord Cockburn proceeded. ' The next case was that of Gray v. Brassey (15 D. B. M., 135). There the summons stated that Brassey was contractor for the DIGEST OF DECIDED CASES. 231 ' maintenance of the Caledonian Eajlway, and that it was the duty CLAHKorKEip, ' of the defendant as such contractor, or of those a,ctiag for his he- *<=■>». ' hoof, to use all requisite precautions for the safety of the workmen ■^'^^o™'''' ' employed by him; that it became the duty of the pursuer, as one Ooal-piuod- ' of the workmen, to uncouple one of the waggons on the line; and, dent—Non- ' on his stepping on the brake for that purpose, it slipped downpfo^^*Jf°* T^" ' with him, in consequence of there being no block on it, which it juries to awork- ' was the duty of Brassey, or those acting for his behoof, to liave^*"j^*S^^'^ ^y ' seen attached thereto; and the consequence was, the pursuer fell, negligenof of a ' and was so injured that he lost his leg, and that this injury arose feUow^-t^ork- ' from the culpable neglect of Brassey, or of Simpson, as his™^^"^^^^."'® ' manager, ployment'" ' The question was as to the relevancy of the summons. The Lord ' Ordinary, and also the Court of Session, held it to be relevant. ' The summons stated that the accident happened, not from the ' negligence of a fellow-workman, but because Brassey, the em- ' ployer, or those for whom he was responsible, had omitted to ' attach a block to the brake where it ought to have been attached. ' The judges certainly did not proceed on the ground that a master ' is in all cases liable for injury occasioned to a workman from a ' fellow-workman. On the contrary, the Lord President iu his ' judgment said that, with very trifing exceptions, he agreed with ' the law as laid down by the Court of Exchequer in Hutcheson v. ' The York, Wewcastle, and Berwick Railway Co. He considered ' the question to turn on what is to be regarded as common service. ' He intimated that it is not enough that the servant injujed, and the ' servant causing the injury, should be servants of the same master. ' They must be employed in the same work. And he observed truly, ' that if a gentleman's coachman were to drive over his gamekeeper, ' the master would be just as responsible as if the coachman had ' driven over a stranger. Lord Ivory is even more distinct; he ' clearly intimates that if the meaning of the defendant's plea wa,s, ' that tiiough the master in the choice of his servants and the suffi- ' ciency of his machinery, was free from blame, he may yet be made ' liable for any injury to a workman, he thinks such a plea may be ^ ' bad. The opinions thus enunciated are, as I conceive, in strict ' accordance with the doctrine of the English cases. ' The only other case relied on was that of ffBryne v. Bum, in ' 1854 (16 p. B. M., 1025). ' There the plaintiff was a girl employed by the defendant in his ' clay miU. She was altogether inexperienced, having been only ' nine days in the defendant's service, and she was therefore un- ' aware of the risks from the machinery. Anderson, acting under ' Bum, as the manager of the works, put her to remove some waste ' clay while the rollers were in motion. This was a duty which ' Anderson ought to have performed himself, and it ought not to ' have been done at all till he had caused the movement of the rol- ' lers to be suspended. The pursuer, in attempting to remove the ' waste clay, in obedience to Anderson's orders, sustained a very. ' severe injury from the rollers in making the attempt. And sl^e 232 DIGEST OF DECIDED CASES. CLAEKorREiD,' raised an action against Burn for damages. The Lord Ordinary Baktonshill ' ^^^^ *^® allegations relevant, so as to entitle her to issues for trial Goal Co. ' of t^e cause. Coal-pit aoci- ' This might have been quite right. It may be, that if a master liabiii% oF em- ' employs inexperienced workmen, and directs them to act under the ployers for in- ' Superintendence and to obey the orders of a deputy whom he puts junestoawork-' m his place, they are not within the meaning of the rule in ques- Se'fauiTor ^ ' *io^ — employed in a common work with the superintendent, negligence of a ' They are acting in obedience to the express commands of their em- fellow-work- I ployer and if he, by the carelessness of his deputy, exposes them man m the same, f .•' ' • n •/ n ^i ^ i ■ t n j? ii. common em- ^o improper risks, it may be that he is liable tor the consequences. ploymem. ' On this review of the cases, therefore, it appears to me that ' there is no clear settled course of decision in Scotland imposing on ' this House the necessity of holding the law of that country to be ' different from that of England ; and I think that general principle ' is altogether in favour of the rule established here. When several ' workmen engage to serve a master in a common work, they know, ' or ought to know, the risks to which they are exposing themselves, ' including the risks of carelessness, against which their employer ' cannot secure them, and they must be supposed to contract with ' reference to such risks. I do not at all question what was said by ' the Lord President, that the real question in general is, — What is , ' common work 1 It is not necessary for this purpose that the work- ' man causing, and the workman sustaining, the injury, should both ' be engaged in performing the same or similar acts. The driver ' and guard of a stage-coach — the steersman and the rowers of a boat ' — the workman who draws the red-hot iron from the forge, and ' those who afterwards hammer it into shape — the engineman and ' the signalman on a railway — are all engaged in one common work. ' So, in this case, as to the engineman and the miners : they are all ' contributing directly to the common object of their employer in ' bringing the coal to the surface. ' I am therefore of opinion, that the exception to the ruling of the ' Lord President at the trial ought to have been allowed, and conse- ' quently, that the third and fourth interlocutors appealed against ' ought to be reversed. I think, further, that the first and second ' interlocutors appealed against ought to be reversed, on the ground ' that no relevant case is stated on the part of the pursuers. ' The case, as made in the sixth article of the Condescendence, ' attributes the accident entirely to the neglect and carelessness of ' Shearer, the engineman, and as there is no statement in that article ' that the appellants had failed to exercise due care in the selection ' of an engineman, or that they had any reason for distrusting the ' competency or carefulness of Shearer, no case is there stated infer- ' ring liability on their part to the pursuer. It may be that, looking ' to the three next articles of the Condescendence, a relevant case, if ' the averments which they contain are sufficiently specific, is stated. ' But I do not feel called on to go into any consideration on this ' head, for the Lord Ordinary, by his note appended to the interlocu- ' tor of the 6th December 1854, expressly states that the discussion DIGEST OF DECIDED CASES. 233 ' as to relevancy had been taken, and he evidently means exclusively OLAKKorKBiu, ' taken on the sixth article of the Condescendence. Indeed, this *<=•! »• • must have been so, for otherwise the issues, as framed, to which '^ c^J^Ca'''' ' both parties assented, and which must have been intended to ex- Coal-pit acoi- ' haust the whole subject, put the claim of the pursuer entirely on^?"*^''°"-i'*- ' the fault of the appellants {i. e., of Shearer their servant) in thepioyerforinjS- ' management of the machinery, not at all on the neglect of (the ap-ries to a work- ' peUants (if there had been neglect) in providing proper machinervl?*"/''^^'^ ^^ ( „„j _. J. i • TT 1 ,1 i> .1 ,, , '' the lault or ne- ana a competent engineman. Unless, therefore, the appellants are giigenoe of a ' responsible for the carelessness of Shearer, (which in my opinion feliow-work- ' they are not), no relevant case is stated. Xmon^^^ ' Before I dismiss the case, I am anxious to refer to a very ableployment. ' and elaborate judgment of Chief- Justice Shaw on this subject, in a ' case which was decided in the year 1842, in the Supreme Court of ' Massachusetts ; I allude to the case of Farwell v. The Boston and ' Worcester Corporation, (4 Metcalfe, 49). The plaintiff in that ' action was an engineer in the service of the defendants, and was ' engaged in running a passenger train on their hue. In consequence ' of the neglect of one Whitcomb, another servant of the defendants, ' one of the switches had- been improperly left across the Mne, and ' the consequence was that the engine was carried off the line, and ' the plaintiff was severely injured. It was admitted that "Whitcomb ' was a careful and trustworthy man, who had long been entrusted. ' with the care of the switches. On these facts, the Court held that ' the defendants were not responsible to the plaintiff. The Chief- ' Justice, in a very able judgment, discussed the whole subject. He ' held that the plaintiff and Whitcomb must be considered as ser- ' vants engaged in one common work under the defendants, and that ' every servant engaging in a service attended with danger, must be ' supposed to take upon himself the risk of all perils incident to the ' service he is undertaking, including those arising from the careless- ' ness of fellow-servants employed in the same work. The whole ' judgment is weU worth an attentive consideration. It is sufficient ' to me to say that it recognises, and in the fuUest manner adopts the * English doctrine, resting as it does on principles of universal appli- ' cation.' {Lord Cranworth). M'GtJIRE c. In the relative case of M'Quire against the same de- "^oTl c™.^'' fenders, lying over for judgment on the same grounds, the^°^^;^^™*7°f following observations were made by the Judges. At juries to eer- o T«^/^/l/^r.\ vant caused by- advising, (iVth June 1858. — Jur. 30, p. 606), — the fault of a fellow- servant. Lord-Chancblloe (Chelmsford).—' My Lords, I think it wiU be ' unnecessary for your Lordships to hear the reply in this case, being ' the same m its circumstances as that of the BartonsUll Goal Com- ' pany v. Reid, upon which your Lordships have jupt heard the ' carefuUy-considered opinion of my noble and learned friend, in ' which I entirely concur. I will, therefore, not trespass at any ' length upon your Lordships' attention. By consent of the parties, 234 DIGEST OF DECIDED CASES. M'GUIEE V. Baktonshill Coal Co. Non-liability of master for in- juries to ser- vant caused by the fault of a fellow^ seryant. for the purpose of avoiding unnecessary expense, it was ordered that this case should, so far as regarded the first and second pleas of the defenders, abide the decision thereof in Eeid's action, and that the same judgment should be pronounced in both cases on these two pleas. The questions to be decided are, — ' First, whether James M'Guire, the deceased, and James Shearer, were fellow-labourers engaged in one common employment ; and secondly, if they were, whether the death of M'Guire haring been occasioned by the carelessness and negligence of Shearer ia the course of this employment, without any proof of general incompe- tency for his duties, or of defectiveness of the machinery, their mutual employers are liable in damages for the event. It has long been the established law of this country, that a master is liable to third parties for any injury or damage done through the negligence or unsknfiilness of a servant acting in his master's employ. The reason of this is, that every act which is done by a servant in the course of his duty is regarded as done by his master's orders, and consequently to be the same as if it were the master's own act, according to the maxim, qui facit per alium facit per se. ' A little more than twenty years ago it was attempted, for the first time, to apply this principle to the case of an injury sustained by a servant from his feUow-servant employed together in the same work ; and it was decided, in the case of Priestly v. Fowler, that an action could not be maintained against the master under such circumstances. This case was followed and confirmed by subsequent decisions, which have been all brought before your Lordships in the course of the argument, — Hutcheson v. The New- castle, York, and Berwick Railioay Company; Wigmore v. Jay; Wigett V. Fox; and Degg v. The Midland Railioay Company; and other cases which have been cited. ' In the consideration of these cases, it did not become necessary to define with any great precision what was meant by the words "common service," or "common employment;" and perhaps it might be difficult beforehand to suggest any exact deJSnition of them. It is necessary, however, in each particular case, to ascertain whether the servants are feUow-labourers in the same work, be- cause, although a servant may be taken to have engaged to en- counter aU risks which are incident to the service which he under- takes, yet he cannot be expected to anticipate those which may happen to him on occasions foreign to his employment. Wbere servants, therefore, are engaged in difi'erent departments of duty, an injury committed by one servant upon the other, by careless- ness or negUgence, in the course of his peculiar work, is not within the exception, and the master's liability attaches in that case in the same manner as if the injured servant stood in no such rela- tion to him. There may be some nicety and difficulty, in peculiar cases, in deciding whether a common employment exists ; but in general, by keeping in view what the servant must have known or expected to have been involved in the service which he under- takes, a satisfactory conclusion may be arrived at. DIGEST OF DECIDED CASES. 235 ' The Lords of Session, in the case of Reid, decided " that Shearer M'Guiee v ' and the deceased were not collaborateurs, because Shearer had the BAKTONauLL ' superintendence of the machinery for lowering and raising the men jfoj,°f^iJ'j°' of ' and the materials from the mine — a superintendence which took master for in- ' his duties altogether from common employment with the meni™® *° /f' ' helow, and that the deceased's business was to excavate coal from the fault of a ' the pit — a line of business entirely different from that of engine- fellow- eervant. ' man." Bat, my Lords, it appears to me that the deceased and ' Shearer were engaged in one common operation — that of getting ' coals from the pit. The miners could not perform their part un- ' less they were lowered to their work, nor could the end of their ' common labour be attained unless the coal which they got was ' raised to the pit's mouth; and of course, at the close of their day's ' labour, the workmen must be lifted out of the mine;.. Every ' person who engaged in such employment must have been perfectly ' aware that all this was incident to it, and that the service was ' necessarily aceopipanied with the danger that the person entrusted ' with the machinery might be occasionally negligent, and faU in ' his duty. ' The Lord Advocate put the case of a master undertaking to ' convey his workmen to their place of work in the morning, and to ' bring them home in the evening, as being similar to the present ' one of lowering the workmen to their work, and taking them up ' when it is over ; and he asked whether it could be doubted that, ' if something were deducted out of the workmen's wages for their ' conveyance to and from their work, the master would be liable. ' Now, in the latter case supposed, it may be very probable that the ' master would be liable for damages to the workmen for the negli- ' gence of his servants in the course of the journey, because he has ' for this purpose converted himself into a carrier for hire. And so ' it may be if the employer, in this case, had entered into an express ' contract with the miners to lower them into and raise them from ' the mine ; he might have put off the mere relation of master for ' this duty, and undertaken that of a contractor. But we are here ' dealing with no such special and precise cases, but with an engage- ' ment in a service subject to all the necessary incidents of it, ' and as essential to, and forming a part of that service— the very ' act, by negligence in the performance of which, by one of the ser- ' vants engaged in the common work, the death has been occa- ' sioned. . . ' Whatever difficulties may occur, in some cases, m determinmg ' whether the parties are engaged in a common employment, I feel ' no doubt that the relation in which Shearer and the deceased stood ' to each other, would satisfy the strictest definition which could be ' given of the term. ' It only remains to make a few observations on the second question, ' as to the liability of the employers of Shearer and the deceased to ' the damages which have been found by the jury, for the fatal con- ' sequences of Shearer's negligence. If this case had arisen m this country, it would be unnecessary to do more than to refer to the 236 DIGEST OF DECIDED CASES. M'GniEE V, Baetonshill Coal Co. Non-liability of master for in- juries to ser- vant caused by fault of a fellow servant. different decisions upon that subject in which, founded as they are on reasons which recommend themselves to the judgment, Your Lordships would probably have acquiesced. But it said, that what- ever may be the law in England, which has only recently broken in on the principle of the liability of the master for the negligence of his servants ; there is no such law existing in Scotland. I own I was surprised to hear the assertion made, because I had assumed that the authorities in England had been based upon principles which were not of local application, nor peculiar to any one system of jurisprudence. The decisions upon the subject in both countries are of recent date, but the law cannot be considered to be so ; the prin- ciples upon which these decisions depend, must have been lying deep in each system, ready to be applied when the occasion called them forth, it win be unnecessary for me, after the complete and satis- factory manner in which my noble and learned friend has inves- tigated the cases which have been decided in Scotch Courts, to follow him minutely in the same course, and show that all of them are reconeileable with the decisions in England, and that, with the exception of occasional dicta of some of the Scotch Judges, there is nothing in them to show that there is any real difference in the law of the two countries. In Sword v. Cameron, the system of blasting in the quarry which had been established, had been habit- ually defective, and therefore the injury which resulted might as much be attributed to the employers, as if they had supplied de- fective machinery, for which undoubtedly they would have been answerable. The case of Sneddon v. Addie, was a case of damage through insufficient machinery, upon which it is conceded that the employers would be liable. And this was also the case in Dixon V. Ranken, for there it was said by the Lord Justice Clerk, " It appears, that with that disregard for the safety of workmen, which seems eminently to characterize aU the machinery management, and other operations in a great many coal and other pits, the crab has no teeth or checks to prevent a reverse movement, and that is said to be a common defect." And again he says, " The recklessness of danger on the part of the men is a result of the trade in which the master employs them, and he is bound in all such cases, to hire superintendence, which will exclude such risks as occurred here, especially and peculiarly when his machinery is defective, in not having the checks which exclude any reasonable chance of danger." In O'Bryne v. Burn, it was hardly possible to apply the principle of the servant having undertaken the service with a knowledge of the risks incident to it. She was an inexperienced girl, employed in a hazardous manufactory, placed under the control, and it may be added, the protection of an overseer, who was appointed by the defendant, and entrusted with this duty, and it might well be con- sidered, that by employing such a helpless and ignorant cMld, the master contracted to keep her out of harm's way, in assigning to her any work to be performed. The case of M'Naughton v. the Caledonian Railway Company, (19, D. B. M. 271,) maybe sus- tained, without conflicting ^vith the English authorities, on the DIGEST OF DECIDED CASES. 237 ' ground that the workmen in that case, were engaged in totally dif- M'Guibb a. ' ferent depaitments of work. The deceased being a joiner or car- BAiiTossniLL ' penter, who, at the time of the accident, was engaged in repairiag jjoj,f]f^ilit' j ' a EaUway carriage, and the person by whose negligence his death master for in- ' was occasioned, were the engine-driver and the person who arranged 3*^"^^*° ^J^' ' the switches. It is in this case, however, more than in any other, fault of a fellow ' that the language of the judges is directed in too unqualified terms servant. ' against the exemption of masters from liability for injuries happen- ' ing between fellow-servants. ' The conclusion, as my noble and learned friend has clearly ' shewn, is, that there is no decision in the Scotch Courts, which is ' not capable of being reconciled with the authorities upon the sub- ' ject in our courts ; although there are occasional dicta of the ' judges, which strongly tend to raise a distinction between them. ' I am satisfied that the principle upon which the English Courts ' have proceeded is the correct one, and ought to be applied to this ' case, and I am fortified in this opinion by the case mentioned to ' your Lordships, by my noble and learned friend, as having ' been determined in the Court at Massachusetts ; because the ' judges in America are in the habit of investigating general prin- • ciples most closely, and applying them with great accuracy to the ' cases brought before them, so as to make them of general use and ' application. For these reasons I cannot help concluding, that the ' appellants in this case were not liable for the death of M'Guire, ' occasioned by the negligence of Shearer, and that, therefore, the ' Interlocutors of the Court below, of July 1855, are wrong and ' ought to be reversed.' Lord Brougham. — My Lords, I entirely agree in the opinion which has been expressed by my noble and learned fciend. I had some little doubt at first as to the Scotch Law, upon reading the elaborate note of Lord ArdmOlan, but when I came to examiae his note, I find that he states cases, some of which, past all doubt, would not fall within the English rule of exemption any more than they would within the Scotch rule ; other cases, he states, upon which there may be some doubt, such as the case of M'Naughton v. the Caledonian Railway Company. As my noble and learned friend has just stated, the decision in that case could not well stand with our reversal of the decision, and with what I consider to be the estab- lished rule of law upon the subject. As an illustration of what I have said respecting Lord Aidmillan's note, I will just point out how he has misstated, or at least, mis- apprehended the English Law. He gives a number of instances, and he says, ' If the absolute rule maintained by the defenders is well ' founded, the masters would, in all these cases be exempt from ' responsibility, a very startling result to a Scotch lawyer, for what- ' ever support to such a rule may be found in some of the decisions ' of the Courts, and more particularly in some of the dicta of the ' learned Judges in England, there is neither precedent nor authority ' in the law of Scotland in favour of it, and the Lord Ordinary is ' humbly of opinion, that an absolute and inflexible rule, releasing 238 DIGEST OF DECIDED CASES. M'GuiEE v. ' the master from responsibility in eveiry case where one servant is Bartonshill i uijvired by the fault of another, is utterly unknown to the law of Non-lf^tyof ' Scotland' But, my Lords, it is utterly unknown to the law of master for in- England also. To bring the case within the exemption, there must ^™?^ '" ^^ be this most material quaMcation, that the two servants must be men faiiltofafellowiii t^e same common employment, and engaged in the same common serrant. work, under that common employment. Judgment of Court of Session reversed. JoHxLt-MSBEif 1st February 185 6. — John Lumsden against James Russell jAMEsEtJssEix & Son.— 18 D., p. 468, Jur. 28, p. 181. & 80s. Coal-pit acci- dent— fatdt on The pursuer was a miner in the employment of the de- liabiiity'of mas- fenders, lessees of a coal-pit near Bathgate, and in Novem- ^^' ber 1853 his son, a boy of nine years old, came to the pit with gunpowder to his father. While at the pit, he was asked by one of the men to go to the water barrel for some water. The barrel waa situated between the pit-mouth and the wi Ti ding shaft of the engiue, and the usual mode of access to it at the time was by stepping across the engine shaft by means of a plank placed for the purpose. The boy in going across took hold of the winding chain, and the engine having been set in motion he was drawn up and crushed to deatL His &ther raised this action, concluding for £500 of damages. It was founded on the averment that the en^ne house was of imperfect construction, there being no window by which the engineman could see the shaft, or management of the gearing; that the door opened in the wrong direction, and concealed aU view of the revolu- tion of the chains round the pins, and that these defects had been remedied since the date of the accident. He also stated that the winding chain ought to have been fenced. The defence was — ^that the boy was at the pit not only without, but contrary to express orders, and that his death was not in the circimistances attributable to their miscon- duct, but v»as entirely owing to the culpable recklessness of the pursuer himself in allowing his son to come to the pit and be sent on such an errand. The Lord Ordinary held that no relevant case had been libelled to subject the defenders, adding the following mOEST OF DECIDED CASES. 239 note : — " In order to support the condvision for damages JohbLimsdkx tlie pui-suei- must allege culpa on the pju-t of the defendei-s,j.,^MEsEussELL or those for -whom they are responsible, and he must so^ ,* .?'''*■ ■ . ., .,,..,., , Coal-pit acoi- connect the acadeut with the culpa, as to deduce cleai-ly^ent— fault on the Uability which he seeks to enforce. ' SS'ofu™: The pecuharity of the c:\se is, 1st, that tlie pei-son m-*^" jured, a bin-, Jis was admitted at the bai-, of 9 or 1 yeai-s of age, -svas not m the employment of the defenders, and w-!\s, when he met witli the accident, in a place where he had no lawful business or occasion to be, and where no child wj\s expected to be: and 2nd, tliat the boy took hold of tlie winding chain at the side of the shaft, which act of his in so taking hold of the chain led directly to the accident. ' K one of the workmen had passed where the boy went, ■ he would not have been so foolish as to lay hold of the ' chain, and then the accident would not have happened. ' But it caoinot be said to have been part of the duty of ' the defenders to calculate on a child going instead of a ' man, and to guaixi against the possibility of an act so ' rash and so improbable, as the laying hold of the winding ■ chain. But for that voluntary act there would have been ' no accident. It is not alleged that children were usually, ■ or even occasionally, employed at the pit, or that the • presence of the deceased, or of any cMldi'en there, was ' to be contemplated and provided against, and then it ■ is allied that the act of the child directly led to the • accident. The pvu-suere say that the winding chain • was not fenced or protected, so as to prevent persons fi"om ' comiDg in contact with it. But the deceased did not ■ come in contact with it as these words are generally im- ' derstood. He went there without occasion, volimtaaily, ' and not in the defender's service, and, being so there, he ' took hold of the chain." The danger of a boy being kiUed bv the winding chain of machineiy at a co;\I-pit. when the boy had no business there, when the place was not public, or situated so near a public ix>ad as to be hazardous — when there was no danger except to the rash and reckless, and when the boy himself rashlessly and needlessly laid hold of the chsun by which he was killed, doe.^ not appear to the L<>rd Ordinarv to be a casualty ag^iinst whicli the 240 DIGEST OF DECIDED CASES. JohnLumsden defenders were bound to provide, or for which they are James EussELL responsible. Coal-pit '^acci- ' This Cannot be put as the simple case of an accident dent— fault on < from insulEcient fencing. The deceased did not fall into puiSTier, non- ^ ^ ^ liability of mas-' an unfenced pit. He laid hold of what he had no right ' to touch, and he was killed in consequence. In aU the ' cases of liability from insufficient fencing, the element of ' accident or casual injury is introduced (Black v. Caddell, 9th ' February, 1804, Hislop v. Durham, 14th March, 1842). ' And in no ease that the Lord Ordinary is aware of, has ' action been sustained, where there was not merelj;- a tres- ' pass in going to the place, and recklessness on the part of ' the injured party in exposing himself to danger, but a ' voluntary act, unauthorised and unnecessary, leading ' directly to the result. It is not sufficient to protect from ' liability, that the injured party was trespassing, though it ' is a circumstance unfavourable to the action, but where ' there is a combination of trespass in regard to presence, ' and recklessness in regard to conduct — where the injured ' person was in a place where he had no business to be, and ' was doing what he had no right to do, and where he by ' his own hand, recklessly caused the accident from which ' he suffered, he is the author of the calamity, and cannot ' recover damages. In this case the deceased party was a ' very young boy, but as he was not in the defenders' em- ' ployment, and was not in a place where young boys were ' entitled or expected to be, his want of judgment and ex- ' perience cannot extend to the responsibilities of the de- ' fenders, (Davidson v. Monklands Railvjay Co., oth July, ' 1855.') The pursuer reclaimed, but the Court adhered. Lord Justioe-Clbrk. — The Covirt is always extremely jealous of any want of due precaution by which workmen are injm'ed, and I quite agree that it is not enough for the master to lay down any general rules as to the distance people axe to keep from machinery, and so on, because we know very well that such regulations cannot he enforced. If the machinery and works are in bad order, and an accident occurs, the master would still be hable, but there are limits to such liabOity, and I own I cannot conceive a stronger case of non- liability than this. Look at why this boy came to the work. The fault was in the father allowing him to come to the pit If the father neglected to take the gunpowder himself, then it was his fault, and, at all events, a little boy, nine years old, was certainly not the DIGEST OF DECIDED CASES. 241 proper pgjty to bring such an article as this. The boy was not em- Ldmsden v. ployed by the master to bring this powder, and the whole fault is Mussel & Son. the father's own. He was most culpable in bringing the boy into dent,"^fauir on the neighbourhood of the pit with such an article. It is the duty pursuer, non- of parents employed in. such works to keep their children away.];'*^''^'y°*™*^' They know the danger, and yet this man sends this boy to a place he never should have been sent to at all. It is the nature of boys to go into, to gaze at, and to meddle with things they do not under- stand. WeU then, the pit-headman here asked the boy to go for water. Whose fault was it that he was sent ? Was it not the father's himself? In the next place, was this a proper act of the workman, and within the sphere of his duty to send this boy 1 Certainly not. He, knowing the place and all about it, not acting in his master's business, but just to save himself the trouble of getting water, sends this boy to a place, on the pursuer's own showing, of a most dan- gerous character. The boy g-oes, is caught by the chain and killed. It is said, the Messrs. EusseU have now remedied this, which is very creditable to them, and very proper, but does not be.ar on the ques- tion as to their liability. I have no hesitatipn in adhering to the Lord Ordinary's Interlocutor. Lord Muerat.^I entirely concur. Every coal-miner, or other employer is bound to make his works safe, and is hable for accidents to their workmen ; but there is also a duty on parents to their chil- dren, and this parent was very culpable in sending his son, a boy of nine years old with gunpowder to such a place. This was extremely wrong. Lords Wood and Cowan— agreed. 20th February 1856.— WiGGET v. Fox, fee. 25 L. J. ^'^^^ '' Exch. Pleas. 188. • Non-liabilityof .contractor tor injury to the The defendants were the contractors for the erection of^^'^kmen^of^a^^ the Crystal Palace, and Joseph Moss aad four other persons oaused^by the had agreed with the defendants to- execute certain piece workmen while work connected with the water works at the High Water ^^ag^^'^^^a^ Towers for £400. By the written contract, Moss and his co-contractors agreed to execute the work in conformity with certain regulations annexed. It was agreed that the work should be done in a workmanlike manner, and to the satisfaction of Fox, Henderson, & Co., and of the engineer of the Crystal Palace Co. — Fox, Henderson, & Co. to find aU hoisting power and tools necessary for the execution of the work — Moss and the others to find their own engine- driver, but to be under the control of Fox, Henderson, & Q 242 DIGEST OF DECIDED CASES. WiQOBT ». Co.^the work to be measured up once a month, and the Non-iiabUity of balance then found to be paid, reserving £10 per cent, of injurr'to the™^^ balance until the whole contract was concluded, when workmen of a the amount would be paid according to the regulations, as caused by the agreed to by persons in the employment of Fox, Hender- workmen while so^' ^ ^^- Moss & Co. employed several persons to work engaged in a at the piece-work, and among others the deceased John common work. . ^ . .° Wigget, who was previously in the service of the defend- ants ; he was at work on the piece-work at the base of the towers at the time of the accident. At the same time, worlcmen employed directly by the defendants were at work on the top of the tower fixing iron plates to form a tank- — such work forming no part of the contract — and a heavy tool used by them fell over the edge of the scaffolding, and killed Wigget. In accordance with the agreement and regulations, the time-keeper of Moss & Co. made out their list, giving an account of all their labourers' time, and sent it to the de- fendant's cashier, who paid the labourers, including Wigget, from their time-sheet weekly at defendants' pay-board, and at the end of every month an account was struck between defendants and the sub-contractors. The Judge, reserving leave to defendants' counsel to move to enter a verdict for them, left it to the Jury to say whether the accident was the result of the defendants' ser- vants, and whether Wigget was, at the time of the accident, a servant of the defendants, or the servant of Moss & Co. The jury found that the accident arose from the negli- gence of the defendants' servants, and that Wigget was the servant of Moss & Co., the sub-contractors — damages £80. A rule was obtained to enter a verdict for defendants, or for a new trial, on the ground that deceased was shewn to be a servant of defendants, or so engaged in common occu- pation with the defendants' servants, as to render the latter not liable for the negligence complained of, and that the verdict on that point was against evidence. AiiDBRSON, B. — We think this case must be determined in favour of the defendants. The principle on whicli our opinion is founded, is to be found in Hutcheson v. The Newcastle, York, and Berwick Railway Co., and it is this: that a master is not generally respon- DIGEST OF DECIDED CASES. 243 sible to one servant for an injury occasioned to him by the negli- Wmjget v. gence of a fellow-servant while he is acting in one common service ; ^'^^ * C°- and the reason for that, in another part of the judgment, is stated fo^trMtefor"*^ to be that the servant undertakes, as between him and the master, injury to the to run all ordinaiy risks of the service, including the risk of negli- '"^*™™; °f* gence of the other servants engaged in dischai^ing the work of their caused by the ' common employer. Here both servants were, at the time of the in- eontfaotor's jury, engaged in doing the common work of the whole contract, and^^J^I^^^^"® for the contractors and defendants; and we think that the sub- aommon work, contractor and aU his servants miist be considered as being for this purpose the servants of the defendants whikt engaged in doing the work — each devoting and Umiting his attention to the particular work necessary for the completion of the whole work; and that, * otherwise, we should not give fuU effect to the principle which governs such cases, as stated in Priestly v. Fowler, and necessarily arises from the enormous inconvenience that would follow from hold- ing the common employer liable under such circurnstances. Here the workman comes into the place to do the work, knowingly and avowedly, with others. The workman may, if he thinks fit, decline any service in which he apprehends injury will result to himself; and, in cases in which danger is to, be apprehended, he is just as likely, and probably more so, to be acquainted with the risk he runs than the common .employer. If we were to hold the defendants liable, we should be obliged to hold that every contractor, where various painters, carpenters, plumbers, or bricklayers were employed in buUding a house, would be liable for all accident inter se to the various workmen so employed on the common object; and, perhaps, it is even difi&cult to say whether it could stop there : for, possibly, the common employer would be made liable in such cases. If, indeed, there were any ground for holding that the person, or persons, whose act caused the death of the plaintiff's husband, were persons not of ordinary skill and care, the case would be different, for the defendants were certainly bound to employ persons of ordinary^ sldll and care in the work, but there is no suggestion of this sort. "We think, therefore, a nonsuit should be entered. The only liabi- lity is on the servant by whom the act itself was donfi, not on the defendants. Judgment for defendants. ' 27th February 1856. — George Cleghorn against Dr ci.eghokn». John Taylor, &c.— (Spittals' Trustees) Definders.-^IS J^^^^^^^;^_ J}., p. 664. 28 Jur., p. 287. ^tX^et- Til- •J.l ^it 0^ ^^ ^^' The action was for damage done by a clumney-ean, witii joining subject, an iron turning top, falling from a tenement belonging to «^™^d^by the ^ the defenders, on the glass roof of the pursuer's adjoining his property. warehouse, and causing great damage. 24' 4 DIGEST OF DECIDED CASES. Clbghorns. The following was the issue tried by the jury: — Liabmtyof pro-' Whether, in and prior to the month of September 1e*^«»' damp while employed in the service of the defenders, atpart' oT the^ sinking a pit for ironstone near Airdrie. The defence""*"^'"' was, that the injuries had arisen from the sudden escape of a large quantity of fire-damp, by the opening of a blower after a blasting of rock in the pit, and the subse- quent imprudent conduct of the men themselves, over neither of which causes the defenders had any control, and for neither of which were they responsible. At the trial, (another action arising out of the same ex- plosion had been ordered to be tried together,) the defenders required the Judge to direct the jury, in point of law, that if the deceased James Lenaghan and Edward Callaghan sustained severe bodily injury in consequence of an explo- sion of fire-damp in the pit, caused not by the fault of the defenders, but by the negligence or recklessness of them- selves, or either of them, the defenders were entitled to a verdict, although it should be proved that, after being so injured, they had sustained further severe bodily injury from being detained for several hours at the bottom of the pit, by reason of the engineman, in neglect of the proper signal, unduly delaying to raise them, unless it should have been proved that the said further injury occasioned the deaths of the said James Lenaghan and Edward Callaghan. Lord Deas refused to give such direction, and the defenders excepted thereto. The jury found for the pursuers; and in addition to the exception, the defenders moved for a new trial, on the ground of the verdict being contrary to evi- dence. The Court, on 1 8th November 1856, disallowed the exception, ' in respect the meaning of the directions asked ' from the learned Judge does not clearly appear on the ' face of the words employed.' But the Court set aside the 280 DIGEST OF DECIDED CASES. Walls or verdict, on the QTound of it being contrary to the evidence, LeNAGHAN f . 1 , n , • 1 MoNBXAND and granted a new trial. ^'""' Oo^^'"'^ '^^ issues for the second trial were adjusted as follows : Verdict for in- — ' 1. Whether, on or about the 23d or 24th March 1852, sion of fire- ' the Said deceased James Lenaghan, when engaged in the tsi^t' on "the'' service and employment of the defenders in forming or part of the ( (Jrivinff a stone mine or road in the said pit, with the miuer? .... ' view of searching for ironstone on behalf of the defenders, ' sustained severe bodily injury in consequence of an ex- ' plosion of fire-damp in said pit, caused by the fault of the ' defenders.' And, ' Whether the said deceased, after being ' injured as aforesaid, sustained further severe bodily injury ' from being detained for several hours at the bottom of ' the pit, by reason of the person or persons in charge of ' the same, and of the engine, and cage, and apparatus con- ' nected therewith, in neglect of the proper signal to raise ' the same, and of his or their duty, unduly delaying to ' raise the said deceased from the bottom of the said pit, or ' by reason of the engine, gearing, and cage not being in ' proper working order, and fit for the purpose for which ' they were intended.' And, ' Whether the death of the ' said deceased was occasioned by the said injuries, or by ' one or other of them, and by the fault of the defenders, ' to the loss, injury, and damage of the pursuer.' The case was tried before Lord Handyside at Glasgow in May 1857, when the jury returned the following ver- dict : — ' The jury, after having been kept enclosed in deli- ' beration upwards of six hours, say, upon their oath, that ' in respect of the matters proved before them, they find ' for the pursuers on both the first and second issues, by a ■ majority of nine on the first, and ten on the second; and ' assess the damages as follows — viz., £100 to Mrs. Walls ' or Lenaghan, and to each of the children who may be ' under fifteen years of age, £50.' The defenders again applied to the Court for a new trial, on the ground that the verdict was ambiguous and uncer- ' tain, and did not exhaust the issue by answering the third part of it, viz., whether the death was caused by the injuries received. The Court held the verdict sufficient, and pronounced decree for the amount found due by the jury, with .expenses, DIGEST OF DECIDED CASES. 281 1 5th July 1857. — William Sutherland, Pursuer, against Suthekland The Monklands Railway Co., Defenders. — D. 19, p.'iJ^sEaT' 1004.— 29 Jur., p. 475. „ "^^'^°% ' r ' ■ Fault on the part of pursuer The pursuer lost his arm while in the employment of ^"'''^ ^^^^s^^- the defenders. He had been engaged as brakesman on goods train on the Bathgate branch of the Monklands Railway, and was told to act under the orders of the engine- man, and especially of George Simpson, to whose goods train he was attached. His duty was to couple and un- couple waggons, and to use the brake for the purpose of slowing the train, his proper place being to stand on the hindmost waggon. The ptirsuer alleged that, at the time of the accident at the Blackstone Junction, no pointsman was placed there by the defenders, and to supply which deficiency in the arrangements of the railway company, Simpson the engineman was in the habit, in order to save time by not stopping the train, of ordering the pursuer, when the train neared the junction, to jump forward along the train till he came to the points, that he might descend as the foremost part of the train reached them, and then to jump on the train after the last part of it had passed the points. He also stated, that ' to do this formed no part of ' his duty as brakesman, and placed him in considerable ' danger.' In performing this operation by Simpson's orders, on 7th January 1856, the pursuer fell, and received the injuries by which he ultimately lost his arm. He alleged that it was the duty of the defenders to have a pointsman at the junction, and that their neglect of this duty caused him to do it, and that he therefore sustained the injury. The defenders pled that the pursuer's statements were irre- levant to support the action ; that the accident was not occasioned by any neglect of duty on their part, but by the pursuer's own recklessness ; and that the pursuer was wrong in obeying the engineman's orders to do what he did, and for which the defenders were not responsible. Draft issues were framed, on which parties came before the Court. The Lord Justice-Clerk said that he was of opinion there was no relevant matter on record to infer Uahility agamst the defenders. 282 DIGEST OF DECIDED CASES. SoTHEKLAND The pursusr expressly states that he was engaged as a brakesman to The Monk- act under the engineman. He states there was no pointsman at the WAY Co. junction with the main line, and that he was in the habit of supply- ault on the ing that deficiency. He says expressly that it was not his duty to irtof pursuer g^Q(- ^g brakesman to shift points, especially when the train was in motion ; but he goes on to aver that it was the duty of the de- fenders to have had a pointsman at the spot in question, and that they having failed in this are responsible for the accident. I think it a material point iu the defender's favour that there was no pointsman, for it clearly shows that it never could have been their intention that the train should run on without stopping. The fault in this case clearly aro.^e from the act of the engineman, and the Eailway Company cannot be made responsible for his reckless actings. Lord Wood— The substance of the allegation is, that the defenders had engaged the pursuer as brakesman, and told him to act under the orders of the engineman, and especially of Simpson. Then it is said that he did obey Simpson, and that in obeying him the accident occurred. But I apprehend that it is not averred that it was in- tended that the pursuer should obey the instructions of the engine- man except in his province of brakesman. It would have been different if he had been ordered to obey the engineman's orders, whether in his capacity of brakesman or otherwise. But I cannot extend the construction of the orders he avers he received beyond this, that they were orders to him in his capacity of brakesman. Thus, the case on the record faUs, for the pursuer went out of his province, and met with the accident when acting in a different de- partment of work. The other Judges concurred, and the Court dismissed the action as irrelevant. iVniTEiiousE I7th November 1857.— Whitehouse against Birmingham cl'rSo^" Canal Co.— 27 L. J. Ex., p. 25. egligence lust be libelled jaiust statu- When a work of a public character (as a canal) has been constructed under the authority of an act of Parliament, a right of action for an injury, not occasioned wilfully, nor by any act necessarily causing it, but arising from the uses of the work, (as, for instance, through the overflow of water in the canal,) must be founded on negligence, and negligence is of the essence of the action ; and although the jury have given a general verdict for the plaintiff, and it has been found that the proximate cause of the injury was an act of the de- fendants' servants, (as raising a flood-gate,) yet if it is doubt- DIGEST OF DECIDED CASES. 283 ful whether that act necessarily must have caused the in- Whitehouse , ., . 1 n -I ,1 , ,1 T J). Birmingham jury, and the jury also iind that there was no neghgence, canalCo. the verdict will be entered up for the defendant. SuffeTbeiied against statu- -^ _ tory trustees. 28th November 1857. — Elizabeth Cook and Children, cook, &c., Pursuers, against Robert Bell, De/eTwfor. — 20 D. P., Hazardouf em- 137. 30Jur.,p. 75. iTC^^eid to undertake Adam Cook, a miner, was kiUed in a coal-pit by the°^3™^7s ™^' falling of part of the roof. The widow and children brought ^a™ against an action of damages against the master — the issue sent to the master trial having been, 'Whether, on or about the 9th day of^nhispart! ' May 1855, the said Adam Cook, while in the service and ' employment of the defender, in removing stoops in the said ' pit, was kiUed by a portion of the roof of the said pit fall- ' ing upon him, through the fault of the defender, to the ' loss, injury, and damage of the pursuer.' The jury returned a verdict for the defender, and the pursuers moved for a new trial, on the ground of the ver- dict being contrary to the evidence. At advising, — The Lord President said — This case was tried before me at the March sittings, and the argument was then as now very fully gone into. But although the case was then fully heard and fairly tried, I do not regret that the motion now made and discussed has been so made, for it enables me to review the whole matter in a class of cases 'where, of all others, our leaning, if any, will naturaUy be with the pursuers. The question put to the Jury was. Whether this unfortunate miner, Adam Cook, lost his Ufe in the pit m question by the fault of the defender. There was no dispute at trial as to the manner in which he lost his life, and the particular kind of working in which he was then engaged— stoop-working. The only question was whether his death arose through the fault or negligence of the defender Your Lordships wiH see from the printed notes ot the evidence taken by me, that the fact as to the hitch in the roof was put to the jury. I also brought under the notice of the jury that part of the evidence as to the allegation made by the pursuers that the accident happened from insufiScient and unsound wood supphed the miners to support the roof, and also from wood not being put up in proper time to support the roof after the supporting coal was ™t Tway. The practice in pits in regard to stoop-workmg is well knowlTie workmen work out as much coal as they c«n leav- hica support of coal for the roof or pillar as it is called. As Sey cut-away a portion of the pillar, they of course, weaken 284 DIGEST OF DECIDED CASES. age agamst le master ithout fault 1 his part. Cook, &c., the support for the roof, and it is then necessary to put up !). Bell. supports. That is done by erecting wooden props or supports, oyment— Hence peculiar danger, and the necessity of extra caution in this '^orkman held kind of pit work. There is no question raised, and no dispute in •dinarv*riske ^®f®'"6nce to the duty iacumbent on the master on the one hand, and id has no ' On the employed on the other. In cases where workmen, such as aim of da- seamen and miners, engage in employments of great peril and danger, °"° °~°'"° the duties encumbent on both the master and the employed are re- ciprocal and imperative. The duty of the owner in a case like this, is to supply wood of quality and strength sufficient to support the roof ; and the duty of the workman on the other is to put it up in proper time. The question is, Whether, whUe working in that situation, Hfe is lost, the master is liable? Though working iu stoops is more than usually hazardous, it is also more than usually remune- rative. Now, though it is necessary for the master or owner to provide good materials, on the one hand, there is a duty on the work- men not to be rash or careless, and not to be reckless in the per- formance of their labour on the other. Each has a duty to perform, which is iacumbent on him to observe. Injury may arise from the rash orreckless manner of using these materials, or iu not withdrawing from the stoop in proper time, when danger is apprehended. It was contended that the fall arose here — 1st, from want of a suffi- cient supply of wood for the artificial support ; 2d, from the wood beiag of inferior quality, railway sleepers being sent in place of fresh wood, and therefore unfit for the purpose. Then, again, as to the matter of management and inspection, neces- sary on the part of those who have charge of the men in this pit, I don't see anything to show that M'Farlane, the overseer, was not regular and vigUant ui his inspection. The third ground stated was, that there was a hitch or flaw in the roof. It is alleged that the deceased ought to have been told of the existence of this hitch ; but in answer to this it is stated, and the proof seems to corroborate, that he must have known of this. But be this as it may, it is proved by several witnesses that the hitch had nothing to do with the accident. They say that it was a kind of hitch not attended with much danger, and was not the immediate cause of the accident. It is said, however, that M'Farlane pressed them to work in the stoops after danger was imminent, but I did not think that was sufficiently made out. Looking to all these matters, I left to the jury to say whether the death arose by the fault of the defender. At same time I did put to the jury certain considerations, such as — that this was not an ac- tion raised for injury arising from defect of machinery or any defect of that nature, but from a fall in the roof of a pit ; that pitmen and seamen wrought under constant peril ; that danger and peril were the ordinary condition of that species of labour ; that there were duties incumbent on both sides — care on the one side, and caution on the other. I must say I saw no reason to think that the jury had gone wrong in their verdict, in the matter of evidence, and I remain still of that opinion. DIGEST OF DECIBED CASES. 285 Lord Ivory. — I am very glad that j'our Lordship has gone fully Cook, &c., into the case, and I entirely concur in that part of the judgment, "• ^^^■'^■ where your Lordship states that there are duties incumbent on^ioy^enr-™'' master and servant so as to make it necessary in this kind of work. Workman held for the master to have always ready a sufficient supplv of wood or*° Ji^dertake material, on his part, and proper care and caution on the other. It and has no ' is perfectly evident, in working in stoops, where there is always claim of da- greater danger, these duties on hoth sides ought to he more rigidly ^^^^j^^^g"/* observed. The deceased knew that the stoop-working is more than without fault ordinarily dangerous. That being the case, it is said he did not o"! ^^is part. know of the hitch nor of the danger. I think it is proved in evi- , dence that he knew both about the hitch and of the danger, and that the accident by which he met his death arose from rash and reckless want of care on his part. It was stated he was not provided with sufficient wood to support the roof — but I don't think that part of the case is established by the evidence. On the contrary, it is in evidence that there was plenty of wood at the pit mouth. If, however, it had been proved that he had frequently complained to the manager about the want of sufficient wood, and this nevertheless was not supplied, then fault would have attached to the master, and he would have been respon- sible. But that is not the case here. Further, it is proved in evi- dence that he got wood which he did not put up. After he got this wood for the express purpose, it lay for some time before he put it up, while it appears it might have been put up in a few minutes. The jury are the best judges of the evidence. They have seen the witnesses, — and I do not think it prudent in the general case to interfere with their verdict. But in this particular case, it is in evidence by one of the vntnesses that he had been spoken to about taking work where there was a hitch. 2f evertheless Cook worked there. He is warned by his feUow-workmen, and stUl he persists in going on. There was, therefore, no failure on the part of the master. The wood is there, yet he does not put it up. The fault, therefore, rather seems to have lain with himself, in too rashly working longer than he ought, and of delaying to put up the wood when it was brought to him. Then as to the management, M'Farlane is proved to have been more than usually careful and cautious. If it had been proved clearly that M'Farlane had insisted on his working there after danger was apprehended, then that would have made a different case ; but that is not established here. In short, it appears that this man— a Mttle too anxious to gain a good wage, and a little too confident on his experience, had worked longer than he ought to have done, and thus met his death. Lord Deas.— The law laid down by your Lordship at the trial was acquiesced in on both sides, and in that law I entirely concur. There is a duty on both parties, and it depends on the nature of the operations whether that duty lies chiefly on the master or the work- man. Here I think it lay chiefly on the workman, for it is not con- tended that there was any other duty on the master than to supply 286 DIGEST OF DECIDED CASES. Cook, &c., Sufficient material to support the roof, and this only to such an ex- V. Bell. ^^^^ ^ ^q enable the workmen to get out of the way when it was ioyment— about to Come down. The object was to take out as much coal as i''orkman held possible. The operation was necessarily hazardous, and the tempta- 'dinarviiks *^°'"' *° engage in it was, that the more coal got out within a given id has no ' time the greater the pay. The deceased was a skilled workman, and aim of da- if the master furnished a sufficient quantity of wood I do not see in le^maSe™^ what his failure of duty can be said to have consisted. It might ithout fault have been that in consequence of the hitch the work ought not to 1 his part. have been undertaken at all, and there might have been orders on the one side and remonstrances on the other. But nothing of that kind occurred here ; for whether the hitch had or had not anything to do with the accident, it is impossible to say that the hitch was of a nature to create danger so great that there ought to have been no working at aU at that place. There may be room for difference of opinion as to whether the hitch had anything or nothing to do with the accident. If it had been necessary to support the verdict to hold that it had not, I am not prepared to say that I should even then have quarrelled with the verdict. But upon the point on which the ease really turns, there is no room for difference of opinion, namely, that whether the hitch had anjrthing to do with the accident or not, the accident is not proved to have arisen from the fault of the master. No doubt Anderson says they had not time to put up the props, and that putting them up would only have hastened the accident. But he obviously did not think this at the time, for he says, ' I was ' going to put one up, and Cook said to lay it down, for we had not ' time till we would get down some more coals. This was about ten ' minutes before the accident. What was meant by want of time, ' therefore, was simply a haste to get down as much coal as speedily ' and with as little labour as possible, the pay being by quantity and ' not by time. Accordingly, Stewart, the drawer, says that he re- ' fused to draw the coals in consequence of the danger, and that ' rather than leave the place Cook drew them himself I quarrelled ' him for not putting up the trees I had brought the night before. ' I did so for the safety of myself and them. He said he wished to ' Go'd he saw it requiring them.' In like manner, M'Farlane, the underground manager, says that Cook had three good pit wood trees newly cut lying beside him. I told Cook there was no use in send- ing down wood if he was not to put it up. He said he had no need of it ; he vrished to God he saw more need for putting it up. It is impossible to say that although the props had been put up there would still have been an accident. It was the duty of the party to do hie best by putting ujp the props, and if an accident had then occurred it might have been a different matter. Even if the case stood on the evidence of the pursuer, I should think it impos- sible to say the accident occurred through the faiilt of the master. The fair inference would rather be that it occurred through the de- ceased's own fault. But when you take the whole evidence together, it is clear that not only did Cook not use the means in his power, biit that his object was that the coal might come down more rapidly, he being willing to take the risk in order to get more profit. The Court refused the motion. DIGEST OF DECIDED CASES. 287 2d December 1857.— Cook or Haggart, Pursuer, against Cook or John Duncan, Defender.—D. 20, p. 180. 30 Jur., ^duncS."' p. 99. Liability of em- ployer for in- sufficiency of John Haggart, a mason, was employed in working at""''^"^'^"^'" Wallace Foundry, Dundee, the property of the defender, for some months. He had been employed by a foreman builder in the ser\'ice of the defender, who in this way did any work, or alterations in the buildings, of the factories. The defender had ordered the erection of an engine-house, and a scaffolding had been erected for enabling the masons to proceed with the work. The scaffold had been put up by the defender's foreman : it was 22 feet high, and was sup- ported by two needles, about a foot broad and three inches tliick ; one end of them was inserted into the wall of the building. The needles were old black wood, that had lain for six months in the smithy. The scaffolding gave way while Haggart was working on it, and he sustained severe bodily injury. The masons themselves had assisted in getting the wood and erecting the scaffolding, and they and the foreman thought it sufficient. The wood was furnished by the defender : the foreman had charge of the erection. It gave way in consequence of the breaking of one of the needles. No precautionary means had been used to test the strength of the needles. The erection gave way from its inability to support the weight of the workmen and ma- terials used in the building, for which it was constructed. The pursuer raised an action for reparation before the Sheriff of Forfarshire, maintaining that the defender was liable, be- cause the wood was bad, and the needles insufficient for the purposes for which they were used, and that this was through the fault or negligence of the defender or his ser- vants. That the test of the insufficiency of the erection was its having fallen without any undue weight having been on it. If the men were careless in selecting the wood, they ought to have been looked after by the master. In defence, it was pled that there was no evidence of the wood being unsound, and it was selected by the workmen them- selves ; and further, that the erection gave way through 288 DIGEST OF DECIDED CASES. Cook ov mere accident, the pursuer being unable to prove any specific Duncan. " defect, and that no responsibility lay for a latent insuffi- byer'^OT ^S-'^i^'i'^y- '^^ Sheriff gave damages ; and in an advocation ifflcienoy of the Court adhered. iaffolding. Lord Mure ay. — There is a great lack of evidence in this case, but we must give effect to it as a whole. There is no proof that the wood was unfit for use, except that the pursuer argued that it was so because it gave way. It was also pled, that the master was hable for the carelessness of the workmen in protecting themselves. On this point, I am of opinion that workmen are not to be taken care of like children, and that they are bound to pay due regard to their own lives and safety. This is not a case where there was a great compli- cation of machinery, of the sufficiency of which the men could not be judges. In such a case the whole responsibihty rests with the master. But in a case like the present there is a joint responsibihty, both with master and servant. Still, taking the evidence as a whole, the leaning I have is in favour of the unfortimate man who was injured. Lord Justice-Clerk. — I take the same general view of the evi- dence as a whole, although I do not concur in all the findings of the Sheriff and Lord Ordinary. There was a scaffolding, upwards of 22 feet high, supported by two needles. It was the defender's duty to have seen that these were sufficient ; and even although he left it to the masons themselves, he was bound to have taken measures to ascertain whether the scaffolding, intended to support two men with their materials, was sufficient for that purpose. The fact that it fell when two men with their materials were put upon it, four days after it was put up, is to my mind sufficient proof that it was not ade- quately supported. In that case the defender's foreman, who was present when the scaffolding was put up, and who knew it was intended to bear a certain weight, is to blame. Lord Cowan. — I think that this is a case of dehcacy. I do not wish to affirm the proposition, that in all cases where there is an accident resulting in an injury to a workman, his employer is Uable to him in damages, unless he show conclusive cause to the contrary. I cannot go on tlie ground, that because the scaffold fell it was bad. The simple view I take of the fact is this, that we have evidence that this scaffold was intended for workmen to stand upon in order to reach their work, at a considerable height above the ground, and that it was supported by two needles. Then what the defender's own wit- nesses say is, that it was intended for the support of two workmen and their necessary building materials, and that it fell from too much weight being put upon it. I think it therefore proved, that it broke because it was over- weighted, and that at the time of the accident there was upon it not more than the weight it was intended and ought to have been constructed to bear. It follows that it must have been an insufficient erection. On that ground I concur in holding that there was negligence on the part of the defender's ser- DIGEST OP DECIDED CASES. . 289 vant, at whose sight the scaffold was ereeted, — a negligence for which Cook or the defender is responsible. Haggart ». Duncan. The Court pronounced this interlocutor : — ' Find, in point -^1^^^*^°*®^! ' of fact, that the scaffolding, erected by the directions of the sufficiency of ' defender, and for building operations which he was carry- ' ing on, was insufficiently supported, considering its height, ' the materials and workmen to be on it : Find that it was ' intended to carry the weight of two men and building ' materials ; but find that, in four days after erection, one of ' the props snapped with the above weight. Find, in point ' of law, that the defender is liable for the insufficiency of ' the scaffolding, and modify the damages to £50, for which ' sum decern against the defender. Find him also liable in ' expenses.' 5th June 1857. — David Balfour, P'tjursuer, against Baird balfouk«. and Brown, Defenders. — 20 D., p. 328. Jur. 30, p. 124. Beown. Non-liability for the death of This was an action of damages as solatmm for the death *^^^J,'^ °^ *^^ of a child. The defenders were timber merchants in Glas- premises where gow, and occupied premises bounded by the Forth and trespassing. Clyde Canal, near the canal basin. The traffic in the loca- lity is considerable. Besides the path along the eanal, for the purposes of its traffic, and in the occupation of the Com- pany, there was a space between it and tbe premises occu- pied by the defenders, unenclosed ; and, by agreement be- tween the Canal Company and the defenders, they were allowed to lay down wood on it. The wood was piled along the canal, each pile being separated by an open space of about three feet from the other, running at right angles from the canaL The public had no right to frequent the banks, but were not hindered ; and, in point of fact, people went there, and particularly children. Some boys were there in May 1855, ajid among others two sons of the pur- suer. One of them, aged about ten, went up a space be- tween two piles of the wood, and one of the piles fell on him, whereby he was killed. The present action of damages was' raised against the defenders, on the ground that the death was ' caused by the culpable, reckle^, and negligent 290 DIGEST OF DECIDED CASES. Balfoue v. ' conduct and proceedings of the defenders, or others for whom Brown. ' they are liable or responsible, in so far as a quantity of toToied^thot ' 'w^ood or timber, in logs or planks, commonly called or known a child on the' as 'battens,' belonging to the defenders, having been owners of the ' ° ° . ' , , , premises where' stacked, stored. Or piled up, m a reckless, careless, culpable tre^Lsing.^*^ ' manner by the defenders, or others for whom they are ' responsible, and that in a place of public thoroughfare and ' resort, at, on, or near the south or south-west bank of the ' canal, at or near Port-Dundas, Glasgow, the same, or part ' thereof, at said place, and on foresaid date, feU upon or ' with the said boy, William Balfour, and so crushed or ' bruised him, particularly near or on his head, that he in- ' stantly, or within a few minutes of the occurrence, expired.' The defenders denied that there was culpa on their part, or that the wood was carelessly or unskilfully buUt up. They attributed the accident solely to the fault of the boy himself, in trespassing amongst the piles on the banks of the canal, which was the private property of the Canal Company. After a proof had been led, the Sheriffs found damages due, holding that, in the circumstances of the case, it was a case of culpable negligence of the defenders to pile up and keep the battens on the place, and in the manner they did ; aiid that they were consequently responsible for the consequences of injuries to the lieges, and to the pursuer for the death of his son. The Sherifis held that the case was not within that of Davidson, 5th July 1855, as the express ground there was, that the danger was open and notorious, and the risk of it inevitable, and that the parents should have kept their child, of three or four years of age, out of the chance of going near the place. The defenders advocated, maintaining that the banks of the canal were the property of the Company, and not a thoroughfare. Though it was practically impossible to exclude persons from passing along who had no business there, yet it was not a place intended for idlers. They resorted thither at their own peril, and neither the Canal Company nor the defenders were bound to take charge of children, who went there to amuse themselves, nor were they bound to consult the comfort or convenience of parties who had no right to be at the place : besides, the boy had left the path, and had trespassed upon the defender's DIGEST OF DECIDED CASES. '291 fT premises- — ^his misconduct caused the occurrence. The mius BALFOuic ^i- of proving the case lay on the pursuer, and it was not ^bkown^ proved that the piles of wood were shaky or unsafe. The ^'?^-i'*™5' ^ pursuer argued that the piles were found to have been inse-a child on the curely built — ^in a place of public resort — for injury thence p^^liLes where arising the defenders were responsible. The doctrine that** '=^*?'^ ^^^ a claim for damages was barred by the culpa of the injured party did not apply to the eeise of a young child, who could not be supposed capable of destroying both public and private property— parties leaving goods in a dangerous position, accessible to children, are liable in the consequences. The Lord Justice Clerk. — This is a very important case, for the' judgments complained of carry the liahiHty of the owners of goods, for the consequences of accidents, and for compensation to parties, to a length unheard of in any other case. As I wish to avoid details, I shal give a general summary of the facts which I think have been proved. The hanks of the canal helong to the canal com- pany. This portion of the hanks is in the vicinity of the canal har- hour. The Sheriff-Depute says it is part of the canal harhom-, and describes the place as hounded hy warehouses, &c. That was ad- mitted to he a mistake, or at least not an accurate description of the locality, whether part of the harbour or not, hut it is at least a very busy part of the canal for shipping and unshipping goods, especially timber. The hank of the canal at this place is at least thirty feet broad. There are tunher yards on the property lying beyond, and outside of the bank of the canal. The advocators have a timber-yard on the side of this part of the hank., They and other timber mer- chants have been for a long period, for the convemenee of trade, allowed to pile up battens of wood at the side of the eanal hank- next to then yard, six or seven feet in length, and sometunes five to seven feet high— the battens being laid liat, the one above the other and several battens in the breadth of the pde. The battens he at right angles to the line of the canal, the ends being towards the tim- ber-yard and towards the canal. Such is the mode m which the wooden battens are piled to be ready for use, not beiiig reqmred to be in the timber-yard as they are to be carried off when they are to be used. For this privilege a rent is charged— nominal, adeed— so as to mark that this is done hy permission hut it is done under the permission of the owners of the ground, the proprietors and guar- dians of the canal, entrusted to keep the space along the canal re- qSred for traffic clear and open. The space so left is at the yard of ^he advocators and beyond the battens, 26 feet clear for the passage f 5! r^ of others doing business. Now of the propriety of al- lowing me i ^^^^ company are the proper 292 DIGEST OF DECIDED CASES' Balfobk «. choose. Their interest is to accommodate trade in every way. The ^BrowjT'* ^°°^ is unshipped along the hanks. It is a great accommodation Non-liability *o pile up the battens, as they are not for use in the timber-yards for the dea*iioftill they are required. They find this to be the case, and they al- owneiB of tte^°^ various timber merchants so to pile battens opposite their yards, pvemisss where They are entitled to do so. They have a deep interest in the breadth the child was of the space left free along the canal for general traffic, and they are leapassmg. entitled to regulate this. They find a sufficient and satisfactory space so left open. They and their officers are satisfied, and no com- plaint is made by the trade. That there is much resort to the place is quite true ; but the space left free is sufficient for the convenience of the public. The notion that any law interferes with the rights of the canal company and their arrangements seems to be extravagant, except that the canal company must provide for the traffic which they invite. They have done so, and there is no other law applicable to the case. What the advocators did was by their permission; and . no one having occasion to use the canal and canal bank complains that the accommodation for the public is interfered with. Then the wood merchants pile these battens in the way found convenient and sufficient, and according to the use of this trade, and of the shippers who buy them. This mode of piling them has gone on for many years. It is entirely for the accommodation of the wood merchants, and they do so in a business-like manner, keeping the piles distinct. I do not understand what is meant by the application of the term public thoroughfare, and even public highway, as applied to the bank of the canaL It is not dedicated to the use of the public as a road independently of the traffic connected with the canal. No right of a road as a highway for all and sundry is constituted by the canal statute on the canal bank, over its whole breadth or any part of it. It is bought for the use of the canal and the traffic on the canal, and it is so used. That numbers may resort to the bank from idleness, to see what is going on, though they may not have business to do, and without having any traffic on the canal, is what always happens in such circumstances ; that boys wiU frequent such a place in numbers, and often, as appears here, to the annoyance of people carrying on traffic, is to be expected. But boys have no business there, they are there only to amuse themselves. They have no right to be there; they come only for idleness and amusement; the place is for business,' and for business connected with the canaL Then what happens ? This boy and some companions get on the canal bank, the others get on board to pick up what they can — and this boy of ten leaves the open space and goes up between two of these pile of battens, which are about three feet apart, I care not for what purpose he is supposed to have gone, whether for amuse- ment or not. That he went to climb up on the battens, which we see is a common practice, as might be supposed, with boys, I have little doubt, but for whatever purpose he went he had no sort of right to be where he was. It was a place plainly marked out as one to which no one should resort except those who had charge of the DIGEST OF DECIDED CASES. 293 piles of wood, and this was quite patent and palpable even to a boy Balfour p. of ten. It was no part of the free space left for those passing by, ^^•'" ^^^ and he was as completely wheie he should not have been as his Non-liability brother and companions who went into one of the canal lighters. He for &e death of goes out of sight between those piles into this narrow space, and im-oT^^^^g °f ^g mediately the noise of some battens falling is heard by his brother, premises where and he is found dead, some of the battens fi:om the top have fallen '^^ ^^^^ '^^ upon him. What he had been doing, how they came to faU, is not '^^^P*^^™^- known, and that is one peculiarity in a case in which the advocators are found liable in compensation as having by their recklessness and culpable conduct caused the boy's death. One thing is quite cer- tain, viz., that the battens did not faU of themselves, that is to my mind perfectly clear. The upper battens had a slight inclination to the other side, viz., to the east, but if any feU. to the westward, no sort of explanation can be given. That they were " touched and meddled with, cannot I think be doubted, but ,at all events the con- trary is not proved. But any theory in this part of the case is of little importance in my view. The battens were placed by the leave of the canal com- pany at this ad a proper and appropriate place, it was an appropriate use to make of the place. This had been done long by them and neighbouring wood merchants. They were piled in the way prac- tised for the purpose and as all are piled — according to the conveni- ences of the wood-merchant and the boatmen who bring them. It is said that this particular batch of battens was insecurely piled. 1 do not think that is proved; and the upper battens, the most likely to be loose, had been removed two days before for use. But further, the wood merchants, or the shipper who piled the battens,^ leaving the narrow aperture between them, was not under any obli- gation to pack them so as to protect persons who choose idly to go in between the piles. In many instances, a party is bound to guard against accidents to those passing by. Whether in the case of old coal-pits the doctrine has been carried too far we need not con- sider. But those packing these piles were under no obKgation to provide by extra precautions, against any one choosing to be on the open free space and to introduce himself, no matter for what purpose, between these piles of battens — so placed as to mark even to a boy that no one was to go between them, as they are close up to the timber-yard so that boys could not even go round the inner ends of the piles for amusement. The notion of a boy being on a thor- oughfare when between these piles of battens, appears to me to be preposterous. And if the expressions are used in reference to the supposed illegality of putting the battens on the bank, the answers are as I have observed manifold. 1. That was done with the leave of the canal company, who had right to sanction what was done. 2 That it was an appropriate use of the ground, for the traffic of the canal 3 That the bank is for the convenience of those havmg business on the canaL 4. That the space is not dedicated to the re- sort of the pubUc for amusement and idleness, quite the reverse, and though the resort of boys and other idlers cannot well be prevented. 294 DIGEST OF DECIDED CASES. BALFouRy. yet such are trespassers who ought not to be there. That the no- Baibd and tices put Tip are not enforced, is true, but even boys know that the Non-liability canal bank is for the traffic of the canal, and they go there just for for tlie death of the purpose of getting amusement from the bustle and objects at the a^hild on the^j^jj^j^ g^^gjj^ as sailing on the wood floating in the canal basin (as this promises where l*oy had done) getting into the ships, playing on the wood as is often the child' was done, in all such cases exposing themselves to danger through idle- trespassmg. ness, by being where they are only as trespassers. It was said the piles of wood were not enclosed by any fence, of course not. 1. That would have been quite inconsistent with the use of the ground for the purpose sanctioned by the canal company. 2. It was not required by the canal company, who were the judges of what was proper in the circumstances, and 3. It was plainly un- necessary and useless, considering the breadth of the open space left free for passage. Upon aU these grounds I am of opinion that no liability attaches to the advocators for the accident which happened to this boy. LoED Cowan. — Such being the place of this unfortunate occur- rence, the case is a striking contrast to the decisions referred to by the Sheriff-Substitute. Take first the case of Hislop v. Durham, 14th March 1842, as to an accident from the month of an old coal- pit being unprotected. It is a mistake to view that case, as having had reference to a pit withiu a enclosed park, there is no such state- ment in the Eeport. On the contrary a private road led from the highway, and then another path from this across the field, which the deceased took to reach her father's house. There was no enclosure, to separate this path from the pit ; but the pit was not duly fenced and the owner was found liable, on the principle that he had failed in his duty to protect the public. And the same general principle had been fixed by an earlier judgment. Again, nothing can be stronger than the contrast between the case of Parlane 25th Febru- ary 1825, and the present. There a party was building or altering a house in a pubUc street, and had dug a hole for a cellar, but did not protect the street from that excavation, and a poor woman tumbled into it in the dark. These cases ditfer essentially from the present ; but there are two recent decisions, in which views which had been sanctioned in the inferior Courts in reference to this class of cases were properly cor- rected, which are more in point. The first of these was Davidson v. the Monklands Railway Company, decided by the First Division of the Court, and the other case was in this Division — that of Lums- clenY. Russell ^ Son, 1st February 1856, in which we unanimously gave effect to the same principle. The circumstances of this last case were not the same as those here, but the principle was. Some ma- chinery was not sufficiently protected, on the assumption of children having to do with it, though safe enough for grown men. A child went near it and was killed. The defence we sustained was, that the child had no business to be there, and so there was no ground for damages. The principle which ruled these. cases is most applicable to the DIGEST OF DECIDED CASES. 295 circumstances of the present case. The place where the accident Balfouk!,. happened was private ground and not a puWic thoroughfare, though Baikd and unenclosed, the purpose for wHch it was used did not require that, Non^uabmty and the proprietors would not allow it to be enclosed. It was not for the death of watched, because that was unnecessary as regarded grown people, * "^^^^ °? J}'® and more especiaUy no child had any business to be there. pS?es where As to the second point — the manner of piling the battens. Hadtte oMld was they been placed iu a reckless way, interfering with the roadway at^'^'^^P^^^''^^- the side of the canal, and had some person who had a right to be there been injured, the case would have been different. From the proof, it is manifest that the battens were pUed in a way usual and suitable for the locality, with their ends to the canal, and plenty of space left between them and the water, and that they were placed so sufficiently that they had stood for two months. No doubt one witness says they were shaky, and that the wind might blow them over, but then there was no wind at the time of the accident. Moreover the boy who had no right to be at the spot, must have gone between the piles. The inference your Lordship has drawn, though not necessary to the case, seems just, viz., that the pile must have been brought down by the boy climbing upon it. At all events, the boy went where he had no busiuess to go, between the battens, and which are not proved to have been improperly placed or piled. On this part of the case, then, the findings in the inferior Court are wrong. It lay on the pursuer to prove culpable negli- gence, and the proof has not established that as matter of fact. Lord Aedmillan. — Though this case is important in point of principle, and particularly so when we look at the views of the Sheriffs, yet it has not been a subject of much difficulty to my mind I concur with both of your Lordships in thinMng the judgments in the Court below establish a liabUity on grounds not recognized ia any of the previous decisions, and not supported even by the deci- sions in the other cases referred to by the Sheriffs. Of course, we must sympathize with the father of the chUd, but he can only ob- tain reparation, if he has proved that the death of the boy was caused by fault on the part of the defenders, and the burden of that proof lies upon him. He has alleged culpa, and he undertakes to prove it, and the Sheriffs have found that he has done so. I can- not arrive at that conclusion. It must be either as regards the se- lection of the place, or the mode of deposit, that this culpa must be brought home to the defenders. The place was one where the de- posit of such battens was to be expected, and was expressly per- mitted by the canal company, the proper guardians of the place, whose duty it was to see the public sufficiently accommodated for carrying on the business of the canal ; and the ground had long been used for that purpose, and a sufficient space was left free for the necessary thoroughfare. In one sense it was a pubHc place — so is a harbour — but public for the business for which it was intended, not for idlers, or for children. The defenders were not bound to enclose the pUes in such a place, and, from the evidence, it appears that they had not power to do so. — Judgment for defenders. 296 DIGEST OF DECIDED CASES. Latch ». The 1 3th January 1858.' — La-Tch eminsi The Rumner Rail- Railway Go. WJlkT Co. 27 L. J. Ex. p. 155. Prma/acieevi- denoe of negli- gence over- The railway wets a single line, and for the purpose of Df"^SuTact allowing trains to pass each other there was a siding with of n stranger, pgints at each end, worked by ' leveis' to turn the trains on and oflF the siding from the main line. The train in ques- tion had passed the siding, and there was evidence that at a quarter-past five the points were all right, and that at four a train had passed aU safe. At half-past five the train with trticks belonging to pursuer came up and went off the line, which caused them to be injured. There was evi- dence that immediately after the accident a stone was found inserted under the lever of one of the points, at the place where it occurred. The defence was, that this had caused the accident, and that being the wilfal act of a stranger, they were not Hable. The Judge told the jury that, in his opinion, there was no evidence of actual negligence, and that if the defendant's account was correct they were entitled to the verdict, unless the jury thought that there was negligence in not having a person to take care of the points at the place in question, which his Lordship said he did not think there was. The jury found for the plaintiff". Defendant obtained a rule to set aside the verdict, and for a new trial, as being against evidence. The Court made the rule absolute. iPoLLOcK, C, B. — ^There was evidence that there had heen a wil- ful act on the part of a stranger, which would have caused the acci- dent, and no evidence of negligence on the part of the defendants — none was suggested except the not having a person always at the spot to look after the points, which they were not boimd to have. The siding had been in that state for months, and no accident had happened. The verdict was clearly contrary to the evidence, and there must be a now trial. Aisotv. January 18, 1858.— Alsop against YatEs. — 27 L. J., Yates. v i k^ Non-liabiUtyof ^^- ^^'• raaeterfor inju- vanfc sees the The plaintiff was in the employment of the defendant, uues'^ork™''"*'i'i engaged in the erection of a building. The defendani> DIGEST OF DECIDED CASES. 297 was the contractor for th,e works, and was occasionally there ; Alsop v. but he had a foreman (who was admitted to be a person ofNon-iiabmtyof competent experience) who had the constant superintend- ^1'^^'^^^*°^'^*^^^^: ance. The plaintiff was a labourer employed at the worlcvant sees tho There had been a hording put up, for the purpose of protecting nues^work?" '" the building from persons passing in the street, and carriages passing on the road ; and, according to the pursuer's evi- dence, he had complained of the hording: but it appeared to be clear that the complaint he made was, that the hording was too narrow, and he had not room to pass with a hod of mortar between it and the crab and cradle that had been erected there. 'Then it appears (per B. Martin, who de- livered the judgment) that when he was working, a vehicle, on coming up the street, where there was plenty of room, struck against the hording, in consequence of which he got injured. He then brings an action against the master, his employer, and insists there was some evidence to go to the jury. • I apprehend there was clearly none, for a very simple reason, that he himself, after he had complained, continued working there voluntarily, with fall knowledge ; and "Shaving done so, it was quite idle to suppose that he can maintain an action against his master in respect of any injury occur- ring in this way. I think there are various other objec- tions. It seems to me, according to the pursuer's own view, that the part the master takes in it was a great deal too remote.' His Lordship^ showed that there was_no negligence proved against thettiaster. Nor was the pursuer in a condi- tion to recover against him under the circumstances. Rule discharged. In the course of the discussion the question was raised. Whether the driver of the vehicle would not be liable ? It was maintained by plaintiff that both might be liable — but that did not show that the defendant was free — both or either may be liable (B. Martin). No doubt there are cases in which that has been held {Bigby v. Hewif). There are many modem cases in which a negligent person has been held liable for an injury, the immediate cause of which wa*i accident, or the act of an innocent party ; as, for instance, the case of a child getting into a cart left carelessly at the door (Lynch v, Morden, 1 Q. B. Eep. 29). 298 DIGEST OF DECIDED CASES. VosEv. The jgth January 1858. — VosE against The Lancashire and Lancasaibb •' ^ & YoEKSHiKE Yorkshire Railway Company. — 27 L. J., Exch., p. 249. Railway Oo. Liability, by fefurieTto'/"' This was an action under Lord Campbell's Act (9 and 10 workman at a Vict. 93). It appeared that at a station, occupied jointly, and used by the defendants and the East Lancashire Railway Company, the husband of the plaintiff was employed in a- siding mending some waggpns. The persons having care of the station were in the service of both Companies, and at the siding in question there was a pointsman, a signalman, and a shuntsman, besides the station superintendant. The noise of the deceased's hammering might have prevented his hearing the whistle of the approaching engine, but there was no distinct evidence of the whistling having taken place ; but the usual signal had been given ; and the officials all stated that everything was done according to the regulations of the Company. It did not appear that they could see the deceased at work, and the engineman could not have seen him. When the engine came, in it drove the two waggons together, and crushed deceased between them. The Judge put it to the jury, 1st, Whether the occurrence had been in any degree caused by the carelessness of the deceased? They found that it had not. 2d, Whether it had been caused by the carelessness of the Company, or their servants, as in not having some one who could see 'the deceased and warn him, or the engine-driver. They found that it was caused by such negligence. 3d, Whe- ther it was caused by any negligence of the Company's servants in disobeying the rules ? They found that it was not, but that it was caused by the negligence of the Com- pany in not having better rales. The Judge, on this find- ing, held that the Company was liable, and entered the verdict for the plaintiff. The defendant obtained a rule to set it aside as against evidence. The Court, ^jer Pollock, C. B., discharged the rule : — ' The jury ' have found distinctly that the defenders were guilty of negligence ; ' and the jury have farther found, that no other person to whom any ' personal neghgence could be imputed was guilty of any negligence ' at all. They have found that the deceased was not guilty of any ' negligence ; they have found that the shunter was not guilty of DIGEST OF DECIDED CASES. 299 ! T^ pegHgence, and that the man who takes care of the points at Voseit. The ' the siding was not guilty of any negligence, and they have, by their Iancashiub ' verdict, thrown the whole negHgence on the defendants, the Com- rI^^Iy™ ' pany, who, it may be observed, were not the employers of the de-Liabmty, by' • ceased. The deceased was not a servant of the Lancashire and"«sligenee, foi- ' Yorkshire Eailway Company. He was a servant of the East Lan- "Sin V a ' cashire Railway Company. Under these circumstances there is no Eailway station ' complaint against the direction and ruhng of the presiding Judge, ' at least the motion does not take the form of any complaint against ' the finding of the jury. After stating that the verdict of the jury ' must be taken as the fact of negligence on the defendants, and on ' none others, his Lordship proceeds : The question we are dealing ' with is, Whether we shall enter the verdict for the defendants ? I ' own I, for one, upon this narrow ground, and some of my brothers, ' I beheve, upon larger grounds, are all agreed the rule must be dis- ' charged, and the verdict should stand. I must say now (I am ' speaking merely my own personal private opinion) I think we ' ought to be extremely cautious how we relax the rule that was laid ' down in this Court originally, but which is now undoubtedly the ' law of the land with respect to servants in a common employ suf- ' feriag by the negligence of each other. I beheve there never was ' a more useful decision, or one of greater practical and social im- ' portance in the whole history of the law. I believe it was the law. ' I strongly understood it to be so before attention was called to it ; ' for if it had not been so, we could hardly have lived in the present ' century without having actions brought over and over again. No * such action ever had been brought before the time when it was ' proposed to make a master hable ia respect of one servant for the ' negligence of another. I think we ought to be exceedingly cau- ' tious how we allow what I must say I consider to be the important ' benefits of that decision to be frittered away by nice distinctions, ' or to be broken in upon by the ingenuity of advocates, or by the ' verdict even of juries. But, in the present case, I am by no means ' prepared to say I should haveconcujred in any disturbance of the ' verdict as it stands ; but there it is, it is the verdict of the jury ' upon what I think we must act, or grant a new trial. On these ' grounds, in which I believe most of the Court concur, the rule must ' be discharged, and the verdict for the plaintiff must stand.' Eule discharged. 21st January 1858. — Hugh O'Neile, Pursuer, against o'Neileb. George Neilson, Defender.— D. 20, p. 427. 30 Jur.,p^^jf^^°fj;3 p. Jtoy). bars damages fi'oni master. The defender had the Dalmamock colliery, and the pur- suer was a boy in his employment in the pit. Access was 300 DIGEST OF DECIDED CASES. o'Neiled. obtained by one pit to two seams. Between the working Fault on the of the two seams there was a circuitous and inconvenient bara"dam^es Toute ; and the defender, at the request of the workmen, from master, sunk a ' blind shaft' vertically, to connect both seams, so that direct communication could be got from the one to the other without going the circuitous route. The length of the shaft was about twenty fathoms ; and a ladder was placed in it, secured to needles, which were cross bars of wood, supporting the guide-rod for the passage of the cage. There were nineteen needles, between which and the outside steps of the ladder there was a clear interstice of four inches. Though the ladder was generally used, some of the men used to ascend and descend the shaft in the cage. The pursuer, in descending the ladder, fell from it when a con- siderable distance from the bottom, and received severe in- juries. He raised an action of damages against the defend- ers, on the ground of the insufficiency of the ladder, forming the only entrance to the pit, ' and which ladder was unlaw- ' fill, was old, and of improper construction, out of repair, ' and in a very unsafe state.' The action was raised in the Sheriff Court of Glasgow, and a long proof taken. The Sheriff-substitute, Skene, assoilzied the defender, in respect that he held it not proved that the accident arose in consequence of any insufficiency or defectiveness in the construction of the ladder itself, but that the proof showed that the pursuer fell through the hasty and reckless manner in which he was descending the ladder. On an appeal. Sheriff Alison altered the judgment, and decerned for £50 of damages. He held that, about the time of the accident, the ladder was rather shaky, and slippery, from dirt of men's feet going up and down it, and that the pur- suer had complained to the overseer of the slippery and dangerous state of the ladder. That obliging men to go up and down a perpendicular ladder of 120 feet high was attended with danger, and doubly so to a youth like the pursuer ; and that there was no evidence of the defender having taken that care which was incumbent on him, when he imposed upon his workmen such a perilous mode of ascent and descent. In an advocation, the Lord Ordinary recalled the Sheriff's judgment, and assoilzied, — holding that the DIGKST OF DECIDED CASES. 301 ladder had not been proved to be a dangerous and improper 0'Neii,e v. access to the working in the pit, provided due caution was Pauif on^liie used, and that the allegation of imperfect construction wasg^Jlyaimage'l not proved, nor that the pursuer fell in consequence of any-*^'*"'™^^**'^- thing defective or insufficient in the ladder. The Court adhered, adding that the pursuer was descending the ladder in a hasty and reckless manner. Lord Justice-Clerk. — The ladder is stated in the summons to be unlawful to be used in a coal-pit. What that means I really do not know, and it was not explained ; and it is further said that it was old and out of repair, and of improper construction. What in reality is said is, that there was something else that rendered what was itself a proper ladder dangerous. None of these points were insisted on. It is obvious that beyond this the pursuer cannot go, though he has imported into his case an allegation that the ladder was slippery. Was there ever a ladder at the bottom of a coal-pit that was not wet and slippery i Then this boy is proved to be incautious. He had been talked to on the subject, and 'cuffed' for it; and upon this occasion it is proved that he began his descent by descending too quickly ; nevertheless he continues to do so most rapidly and care- lessly, and in a way in which he could not retain his hold if anything occurred to disturb his descent. It was pleaded that he was too young a boy to be employed in this way ; that would put an end to the employment of boys in coal-pits at the age at which the Act of Parliament allows them to be so employed. He was incautious and careless, and he is proved to have on this occasion come down too fast. The Sheriff-substitute has found that he fell from an accident, caused by the hasty and reckless manner in which he was descend- ing the ladder. The Lord Ordinary has not repeated that finding, I do most certaiidy agree in it. 29th January 1858.— Helen Stirling or Hardie, Pur- ^^^^^^^^ suer, against Messrs Adie, Miller, and Eankin, i)e-ADi^i^LL,ER, fenders. — ^D. 20, p. 553. 30 Jur., p. 247. Master held re- •' sponsibleforne- gligence of his William Hardie, the pursuer's husband, was an under- ^^^^p^^^^ ground manager in a coal-pit belonging to the defender at coal-pit. Eosehall, and was killed by the faUing of a large mass of stone from the roof of the pit. The pursuer pled, that the death was caused by the omission, fault, negligence, or care- lessness of the defenders ; while, on the other hand, the de- fenders contended that they were not liable, as it arose either from the carelessness of the deceased, or from damnum 302 DIGEST OF DECIDED CASES. STiKLmG or fatale ; and if it should appear that the accident arose from Adie, Miller, the fault of the general underground oversman, no damages MMtohdd're-^^^® *^^® ^J ^^6™ ^ masters for the fault of a fellow-ser- sponsibie for yant. A proof was led by both parties, and the Sheriff, altering his imder- an interlocutor of his substitute, found the, defenders liable fn?coai-prr''iii £1 00 of damages. In an advocation, the Lord Ordinary, and subsequently the Court, adhered. In a note by the Lord Ordinary, he says : ' For the defenders, the chief defence ' relied on is, that, at the time he was killed, William Hardie ' was local underground manager of the pit ; that it was ' part of his duty to see that the roof, at the place from which ' the stone fell, was properly supported, and that his death ' was occasioned by his own negligence. To the Lord Ordin- ' ary it does not appear that the evidence adduced is suiBcient ' to support this defence. It is clear, from the account given ' by Archibald Neil, the imderground manager, and others, ' that Hardie was engaged as roadsman and fireman in the ' pit, and that his proper duty was to look after the roads ' and fires, — ^that is, to lay the rails on the drawing-roads, ' and keep them in proper order, and to attend to the ' ventilation in both seams of coal, in which about a dozen ' faces had been opened, and about twenty men were em- ' ployed, — a work abundantly sufficient for any one man to ' perform. In considering the special defence, there is One ' feature of the case which is peculiarly unfavourable for the ' defenders. It is clearly established, that about a day or two ' days, before the accident occurred, the dangerous state of ' the roof at the place where it afterwards gave way, was ' pointed out by some of the colliers to Neil, the under- ' ground manager, who, after inspecting the roof, in place of ' giving orders for supporting it, directed the men to proceed ' with their work, which they did, trusting to his supposed ' skill and experience, in the belief that there were no serious ' grounds to apprehend danger.' The LoED President, at advising, said : — The result at which we have arrived in this case is, that the interlocutor of the Lord Ordin- ary is right. We have gone over the proof carefully, and there is no doubt conflicting evidence and discrepancies in it ; but, looking at it as a whole, we think it is in favour of the pursuer. The first point is as to the cause of death by the falling of the stone. Now there is in regard to his some contrariety of evidence ; but giving DIGEST OF DECIDED CASES. 303 that due effect, and considering the mode in which this part of the pit Stibltng or was wrought, viz., on the ' long wall' system, we are of opinion that j^*^^"^ "• it fell from want of due support. The question then is, Whether &uLii^^ that was owing to the negligence of the defenders, or any one for Master held re- whom they are in law responsihle? There was some argument as to ^^"u^^^ce^of whether it was not the parties employed in erecting or building a his under- wall to support the roof, who were liable in respect of want of due ground mana- care in doing it; but it does not appear that the wall was carried so|i^ ^^ * ""^ ~ far as to admit of its interfering with or causing the fall of the stone. The pursuer avers that it was through the fault or negligence of the defenders, or their pit manager or superintendent, Neil, that the deceased met his death. Hardie, on the other hand, is stated by the defenders to have been the local manager of the pit, and that it was to him as superintendent underground that the defenders looked to see that the roof was properly supported ; and the question is. What was his primary duty in the pit ? I think that it is clearly proved to have been the duty of the roadsman and fireman to clear the pit of fire-damp, but he had no charge of seeing that the roof was properly supported, and of providing against apprehended danger from it faUmg. There was another manager, to whom Hardie was a mere subordinate, and whom he was bound to obey. This was Neil, who was the party who had this particular duty to look after. Neil then, as we consider, is shown to. have been. informed of the appre- hended danger two days before the fall. Although there may be contradictory evidence on this part of the proof, it is clearly esta- blished that he had the particular spot of the danger pointed out to him, and yet his answer was (striking his stick against the seam), that he saw no present danger in the roof. Neil had denied this, but he admits that he was in the pit, and had the part pointed out to bim on the occasion referred to, and he then gave directions to the people for certain things to be done towards propping up the roof. If he gave directions to this effect he must have seen there was danger, yet he did not return to see if these instructions had been carried into effect. In this essential part of his duty he had failed. There is no proof that Hardie had the chief superintendence in the underground workings of the pit It is not stated by any one that he was the party whose duty it was to go about and seek out places of danger, and to guard ag;ainst them. That was the duty of Neil. The fault therefore lay with him, and the defenders were responsible for that fault. One defence stated was, that Hardie had a knowledge of the toof, and therefore ought not to have gone there ; but that does not rest on any satisfactory evidence, but the evidence rather shows the contrary. The present ease, therefore, cannot be brought under the case of Cook v. Bell, where the man was certio- rated of the danger, arid warned not to work in the stoop. Then, m the next place, it was said that the master was not responsible, be- cause the injury was occasioned by the erection of a wall by a con- tractor employed to build it up to support the roof, but we have.no evidence of that. Another ground stated was, that there was no re- sponsibility, because the injury was occasioned by one fellow-servant to 304 DIGEST OF DECIDED CASES. Stiruno or another. Such a doctrine can only be pleaded where two jjorsons, Amb"miller ^^^^^ ^y t^^ ^^™® master, and on the same hire, on tlie same eiii- & Amikin. ' ployment, and the one is injured hy the carelessness of the other. Master held re- But here Neil was not a person standing in that position, and the t£e "neKuience °**^ ^°^^ "°* ^"^^^ *^^* P-^®^' '^^® Court are therefore of opinion of his under- that the interlocutor of the Lord Ordinary ought to be adhered to. ground mana- This case was settled ; but the case oiLennan against tho same de- ger m a ""a, - ^.^j^^^j.^^ ^£ ^ somewhat similar nature, was appealed to the House of Lords, and the judgment reversed. — See Lennan v. Adis and Miller, afterwards reported under date 28th July 1859. HELENsolNAL^^-Seth Januarj' 1858.— Manby against The St. Helens &eailwayOo. Canal and Railway Company. — 27 L. J., Ex. p. J 60. uailway and ' OanalOo.lialDle , useof wotS! ^\i\s was an action under the Act 9 and 10 Vict., c. 93, for reparation at the instance of a widow for the death of her husband, who was drowned in the canal by reason of the drawbridge, which continued the public road, having been open, and no fence along the edge to prevent the pas- sengers on the road falling in. The deceased had been walking home during the night, and the bridge had been opened by some boatmen to let their boat through, but it had not passed through, and the bridge remained open, and in consequence the deceased fell into the water. There was no evidence that the deceased, through insobriety or other- wise, had contributed to his death. It was contended, how- ever, that the owners of the boat were liable, and that the defendants were not. The Judge laid it down that the Company were bound to take reasonable precautions to pre- vent passengers from falling into the canal when the bridge was opened after dark ; and he left it to the jury to say whether the deceased fell into the water through the want of due care on the part of the defendants, without fault on their part. The jury found for plaintiff, damages £750, viz., £500 for widow, and £250 for child. The defendants obtained a rule to enter the verdict for them, on the ground that the bridge was not at the time under the control of the defendants, or to arrest the judg- ment. — At the discussion, — Mahtin, B. — I only concurred in granting this rule on the ground that it might appear that the boatmen were responsible, but it now HE DIGEST OF DECIDED CASEa .305 plainly appears that they are not. The defendants are bound toMANBYi- T„ mamtam the bndges, and though they had authority to erect swing St Hei.eks bridges, yet they were bound to maintain the bridges they did erect ^^^^ ^" so as to prevent danger to passengers not avoidable by reasonable ^wrylnd' care. That is a common law duty consequent on their having ^*°*i^°-''*'''6 erected the bridges, and on their being bound to maintain them.^^offo^.^' They choose to erect a swing bridge, which, when opened, left the side of the canal exposed; and they left the bridge without a Ught, so that passengers at night might fall into the canaL The question was left to the jury, "^Miether the light was sufficient, and they found that it was not, and no other precautions were taken. Chaxnel, B. — I reserved the question, Whether the action was naaintainable against the company, with reference to the construc- tion of their Act, and also as to the possible effect of a statutable authority to erect or construct works which might otherwise be a public nuisance. The defendants farther contended that they were in a position analogous to that of trustees of turnpike roads, and, as such, were not personally Hable. Martin, B. — The canal and bridges aie the property of the com- pany, and they make tolls for their own benefit. Their position is not at aU analogous to that of trustees of turnpike roads, or other parties merely acting in a public capacity without any interest or right of property. It was then submitted for defendants that on the principle of the case of The King v. Pease (4 B., and ad. 30), the eanal and bridge were works authorised by an Act of Parliament, without any quaU- fication or restriction, and the defendants are not responsible for any risk arising from the lawful use of the bridge. Pollock, C. B. — Provided there was no neghgence in the manner of maintaining or using the bridge ; but the jury have found negligence. The Court discharged the rule. Pollock, C. B. — This rule must be discharged for the reasons already thrown out in the course of argument It is contended that the bridge was constructed by the company under the authority of an Act of Parliament, and that the defendants are parties iu the same position as trustees of turnpike roads, or other persons merely performiug public duties, and exercising powers with which they have been entrusted by the Legislature. But that is not so. They were the owners of the canal, and are to be treated as any trad- ing company; andjilthough, possibly, the Legislature permitted them to exercise these powers — a condition partly of benefit to the public, they do not the less exercise tJiem for their own private benefit and profit. They are, therefore, personally responsible for the injury which arises from their not having done, or from their not having properly done, what they were bound to do. By this Act they are allowed to intersect highways, but they are to make bridges, and this must be taken to mean bridges proper and suffi- cient. They are not expressly authorised to construct swmg bndges ; U 306 DIGEST OF DECIDED CASES. Manbyj). The and although such bridges might, a century ago, when the pnpula- St Helens t^gn was comparatively scanty, and traffic comparatively small, have Eailway Co. been reasonable and proper, it may not be so now, when cLroum- Eailway and stances in that respect have so altered. At all events, the precau- fcu^eS^Keut'^^*^°'^® which might have been sufficient to prevent danger to human use of works, life in the use of such bridges, may not be so now ; and the jury were justified in finding that they were not so in this case, where it appears that a man had lost his life without any carelessness on his part. It appears to me clear that the defendants on that finding are responsible, and that there is no reason to question it. H^DEEs™ & '^ 2*^ February 1858. — CoLiN M'Kechnie, Pursuer, against Son. James Henderson & Son, Defenders. — D. 20., p. 551. LiabUity for^.^o/^£^r.^» injury by defeo- J UP., VOl. JO, p. 297. tive machinery. The pursuer was in the employment of the defenders, iron shipbuilders, at Renfrew, and was deprived of his sight while working at a punching machine. He pled that the injury was caused by the fault and negligence, of the de- fenders, or others in their employment, for whom they are legally responsible, while the defenders maintained that the injury was the result of the pursuer's own negligence, reck- lessness, and inattention, and that they were consequently not liable. The action was raised in the Sheriff Court at Glasgow, and a proof was taken by both parties. It ap- peared that the pursuer, who was about twenty-one years of age,had been usually engaged in assisting in fixing the punches and bolsters used in the defenders' punching machines; and that, at the time of the accident, he had been desired to take out a punch and bolster, and replace them with others of a different description in one of the machines; and that, after he had done so, the machine was set in motion, and that as soon as the punch had descended into the bolster, a small splinter broke from the end of the punch, which struck the pursuer on his right eye, and deprived him of sight, and soon after he lost the sight of the other eye also. The Sheriff-Substitute decerned for £500, which, on appeal, was reduced by the Sheriff to £400. The case was advocated by the defenders. At advising, DIGEST OP DECIDED CASES. 307 The Lord President. — It is impossible to say that this case is M'Kechnik r. free from difficulty on the proof. The defence set up is that there Henbekson & was gross negligence on the part of the pursuer in not withdrawing Lij,^,jiit„'{oj. the ¥ite, which would have kept all safe. N^ow, upon this part of injury by defec- the case, there is a conflict of evidence, particularly on the question, '^'^^™''°'^™'"'y' Whether this bite was orwas not in its place on that occasion. It is said if it had been kept out, there would have been as great risk, and it is said that this party deviated from the usual course, and that he had not the bite in wh«n the injury occurred. I think the evidence on that point is in favour of the pursuer, and that he did not de- part from the usual course in this respect. Then I think it is proved that the machine was old, that it had been repaired, that it wanted teeth, and that at the time the injury happened it was employed in the usual way. Therefore, there is no evidence that the injury arose from the fault of the pursuer. The following is the judgment ,of the Court: — 'Advocate the ' case, and recal the interlocutors of the Inferior Court of 12th ' October and 13th November 1857. Find that it is sufficiently ' instructed as matter of facts: 1st, That, for some time previous ' to 22d May 1857, the pursuer, who was then about twenty- ' one years of age, was in the employment of the defenders, and ' that it wa,s part of his duty to assist Eobert Kinloch in fix- ' ing the punches and bolsters used in the defenders' punching ma- * chine. 2d, That, on 23d May 1857, the pursuer was desired by ' the said Robert Kinloch to take out a punch and bqlster and re- ' place them with others of a different description in one of the de- ' fenders' punching machines. 3d, That, after the pursuer had done ' so, the machine was set in motion, and that as soon as the punch ' had descended into the bolster, a small splinter, which broke from ' the end of the punch, struck the pursuer on his right eye, in con- ' sequence of which he was immediately deprived of the sight of ' said eye, and either at the same time or soon after lost the sight of ' the other eye also. 4:th, That at the time the pursuer received ' this iniury, the punching machine, at which he was working, was ' in bad order ; and the injury which the pursuer received was caused ' by the defective state of the said machine, which defective state « was owing to the fault or culpable negligence of the defenders, or ' others for whom they are responsible. 6th, That in consequence ' of this iniury the pursuer was rendered, and is now completely ' blind, and unable to work for his subsistence^ 6th That the pur- ' suer's wages at the time was 10s. a week. Find that, m point of ' law it is the duty of employers to keep the niachmery which ' tW use in good order, and that they are bound to make repara- ' tion to their servants for any injury they may receive when em- ' Ployed by them at such machinery, if said injury has been can ed • CS defective state, and thereby through the fault or culpaWe ' neeUeence of the employers, or of others, for whom they are re- . ?pSr Therefore decern, &c., for £400 in name of damages, ' vdth interest thereon, and expenses of process. 308 DIGEST OF DECIDED CASES. GiBB,,. The 23d February 1858. — Gibb against The Trustees of the Trustees OF _ _ T-r.,b_ , -r-.iT-. The Liver- LIVERPOOL DOCKS. L. J. 27., p. 321 Exchr. Eeps. POOL Docics. Dock trustees held liable for Thig -^as a Writ of error, and was tried before Ck)ckbiirn, damagesbyun- . . * • r^ i safe state of C. J,, J. Coleridge, Wightman, Cresswell, Williams, Crowder, ^^ °^'^' and Crompton. It referred to the liability of dock trustees for damages caused to a vessel entering the docks at Liver- pool — the ship having struck on a bank of mud at the en- trance of the harbour. Judgment had been given for the defendants. The case was fully argued, and the judgment was reversed. The substance of the opinions of the Court is given by Justice Coleridge, who moved the reversal. He stated — The plaintiff pursued fordamages against the defendants for injuries caused to their ship, the Sierra Neveda, by the ship having struck on a bank of mud, lying in and about the entrance of the dock, as she was endeavouring to enter it. The only defence insisted on lat- terly was, that the defendants, being a corporation created by statute, and deriving no emolument from, or remuneration for, the per- formance of a statutory duty, and having a discretion as to the appli- cation of the funds received by them, could not be made liable in an action at law for not choosing to exercise their discretion at any particular time by spending the funds in removing the accumulation of mud ; and the case of Metcalf v. Hetherington (24 L. J. Exch. Eep. 314 N. S.) was relied on as governing the present case. In that case, the trustees of the harbour were sought to be made liable for the default of the harbour master, but it was held bad. That decision has no application, because here it is not sought to make the trustees liable for any default but their own. In Metcalf there was a third count charging the trustees with negligence in the pre- servation and keeping of the harbour, and improperly suffering rub- bish to accumulate therein, contrary to their duty, whereby it be- came unsafe, and the plaintifPs vessel being lawfully there, was thereby damaged. The Barons there held that this count was also bad in substance; 1st, Because there was no averment that the trustees had received funds wherewith to keep the harbour clear of rubbish; and, 2d, On the ground that the Legislature had reposed in them an absolute discretion (with certain exceptions) to dispose of the funds arising from the tolls in maintaining the harbour; so that, although the harbour wanted cleaning, they might apply the surplus in their hands to the repairs of the pier, to deepening the mouth and similar purposes, if they thought these objects were press- ing, and of more advantage to the harbour than keeping the bottom clean. The former of these grounds of decision does not apply to the present case, inasmuch as the declaration in this action does DIGEST OF DECIDED CASES. 309 contain an averment that the defendants had received sufficient Gibb v. The funds ; and it may be questioned whether the latter ground is not Trustees of also inapplicable, because the declaration avers not merely that the pool 'Docks. trustees had funds sufficient to enable them to remove the rubbish Dock trustees complained of, but also to perform their entire duty of maintaining, aamJ'esb un- cleaning, supporting, and preserving the docks, in addition to the sX ^sute ^f " satisfaction of all other charges, liabilities and incumbrances in andl^arbour. about the same. It may be doubted, we think, whether, coupling this averment with the allegation of the knowledge of the trustees that the entries of the dock were dangerous, a state of facts is not shown under which they had a positive duty to perform, and not merely a discretion to exercise as to the removing of the danger. But, at all events, we think that if they had a discretion under the circumstances, to let the danger continue, they ought, as soon as they knew of it, to have closed the dock to the public ; and that they had no right, with the knowledge of its dangerous condition, to keep it open, and to invite the vessel in question into the peril, which they knew it must encounter, by continuing to hold out to the public that any ship, on payment of the tolls to them, might enter and navigate the dock. The case of Parnaby v. The Lancaster Canal Co. (11 Ad. & ElHs, 223) establishes that the defendants would have been responsible, under such circumstances, if they had had a beneficial interest in the toUs when received; and we do not think the principle of that decision inapplicable because the defen- dants in the present case received the tolls as trustees. The duty, in our opinion, is equally cast on those who have the receipt of the tolls,' and the possession and management of the dock, vested in them, to forbear from "keeping it open for the public use of any one who chooses to navigate it on payment of the toUs, when they know it cannot be navigated without danger, whether the tolls are received for a beneficial or for a fiduciary purpose ; and for the consequence of this breach of duty, we think they are responsible in an action. We are, therefore, of opinion that the judgment should be rescinded. Judgment reversed. 21st April 1858. — Williams against Clough.— 27 L. J. ^^^^;^™f "• Exch. Eep., p. 325. Eelevanoyof averments. Action for expense of surgical attendance caused by in- juries received by plaintiff, who was a servant for hire of plaintiff, and, while carrying com for defendant up a ladder into a granary, fell from the ladder in consequence, as alleged, of its being unsafe and uniit for the purposes for which it was used. It was alleged that the plai^tiff, be- lieving the ladder to be fit and proper for the use and pur- 310 DIGEST OF DECIDED CASES. WlIXIAMS II. CLOtlGH. Eelevancy of averments. pose aforesaid, and, not knowing tlies contrary, did caiTy corn up the same on the order of defendant, and, tvhile carrying out that order, fell, and was rendered unfit for work. For defendant it was contended that the declaration disclosed no cause of action: it was consistent with the de- claration that the plaintiff had notice that the ladder was unsafe, but that he believed the contrary, and therefore he may say that he knew nothing, although told of it. More- over, this is a case in which the servant had as ample means of knowledge as his master. Pollock, C. B. — We think the declaration good. Martin, B. — It is not necessary to negative every possible state of circumstances which may be an answer to the action. BR4MWELL, B. — As at present advised, was of opinion that the defendant would not be liable if the plaintiff bad the same oppor- tunity of forming an opinion, although be came to an incorrect but honest one. If so, the declaration would be good, or not, as it pro- duced that state of circumstances. He gave no opinion- wlTiAus ^^^ ^^y ^ ^ ^ ^^ — -^^^^ against Williams. — L. J. 27, p. 3 &7 Improvement Exch. Commiasioners liablefor injury peXc^t^teof Action against defendant, clerk to the Cheltenham Im- drains. provemcnt Commissioners. The action was for damage arising to the property of plaintiff by the bad, defective, and improper manner in which sewers were constructed and kept; that they were continued in a defective state, and without due support, whereby, through the carelessness of the Commissioners, the sewer burst and overflowed, and the sewerage therefrom entered the pursuer's premises and did damage. Defence, not guilty, and a denial that the Com- missioners had the care and control of the sewers. It ap- peared that there had been for a considerable time a sewer near the plaintiff's property, and the plaintiff was the owner of baths, &c. There communicated from his baths to this sewer a private drain for the purpose of draining his pre- mises. There was a flap to that drain, which prevented any backwater from the sewer being forced up into his premises at all. In 1852, the Commissioners obtained an Act of Parliament and made new sewers; these were considerably deeper than the former ones, and a communication was DIGEST OF DECIDED CASES. 311 made from the drain from the plaintiff's premises into the Rdok ». sewer, but they omitted to make any flap. The work was improvement given up to the Commissioners by the contractor as finished, ^"^jf^^j"?^ A flood afterwards happened, and the puddhng underneath canaed by im- the river Chelt was washed away, and, in consequence of drains. the pressure of the water, it burst, and the stream of the Chelt was permitted to flow into the sewer. This caused damage to the plaintiS! B. Martin non-suited the plaintiff, on the state of the authorities, but gave leave to move to- enter the verdict for the plaintiff. The reason (says the Baron) I gave leave, was that there was a case pending in the Court of Error, Gihbs v. Liverpool Dock Trustees (lit supra), and it was supposed that the principle to be settled there would rule this case. The case has been since decided, but whether it would go this length, may be questionable. But two cases were quoted in argmnent yesterday {Ward v. Lee, 24 Law, J. (Q. B.) Eep. 142), which, although it camiot be said to be a judicial autho- rity upon the point, yet it is as nearly so as a case can be. The action there was brought against a contractor, and Mr. Justice Wightman, in delivering the judgment of the Court of Queen's Bench, that the contractor was not hable, showed distinctly that the Commissioners of the Board of Health were : their Act of Parlia- ment incorporated the Public Health Act, and the words were identical with the words relied on in the present case. There is an- other case, The Itchen Bridge Co. v. The Local Board of Health of Southampton, L. J., vol. 27, p. 128, which seems to estabUsh be- yond aU manner of doubt that there is a habihty on the Commis- sioners to damages when they are enabled to reimburse themselves out of the rates for any consequences of acts done by them in the course of drainmg, which they are authorised by an Act of Parha- ment to do, and we consider ourselves bound by that case j^ and we hold, therefore, that the Commissioners are hable. Leave was given to enter the verdict for £120. Waite v. Nobth-East- 10th June 1858.— Waite, Plaintiff, against North-Eas- ^^^^^_^^^^_ TERN Railway Company, Defendants. — Law Journal, 27. ern bail. Co. 1 -n 1 > 1-7 Negligence in Queen's Bench Kep. 417. plaintiff— a child identified ...J „ with its guar- This was an action of damages for injury to a child hvecUanm^a^ques- years of age, who, along with his grandmother, had beeng'°^<,° ''"^ " passengers by the Railway. In January 1857 the grand- mother Mrs. Park, took a ticket for herself and a half ticket for the 'child, at the Velvet Hall Station of the defendants' 312 DIGEST OF DECIDED CASES. WAiTEt). Railway to Tweedmouth. There waa only one person em- m Bail Co.ployed about the railway, although there was a considerable amtS— a ™ goods traffic at the station. This person, after having given ith it'^*"*'"^*^^^® tickets, left the booking-office for the goods-shed, having an in a ques- told Mrs. Park that her train would be up in a quarter of ■nee. °'^ ' Stu hour. They went into the waiting-room. The booking- office and other station buildings are all on one side of the line, and persons^intending to go by the train to Tweed- mouth have to cross to the opposite side of the line. This is generally done by crossing the line of rails when the train is in sight, on the attendant requesting the passengers to do so. Soon after the attendant left Mrs. Park, a goods train, also going towards Tweedmouth, but not stopping at the station, came up, and after it had passed Mrs. Park was found on the line killed, and the plaintiff much hurt. It was conjectured that Mrs. Park had taken the goods train for the passenger train, and had been knocked down in attempting to cross. The engine dravsdng the goods train was driven with its tender first, -so that the driver was not in a good position to observe the plaintiff and Mrs. Park. The Judge (B. Martin) told the jury that, in order to find a verdict for the plaintiff, they must be satisfied that there was negligence or default in the servants of the Company in managing the station, or in driving the engine. If there was no negligence on their part, or if the person injured conduced, by his own rashness, to the accident, then the defenders are not responsible. There was also the new question, as to how far the plaintiff" himself being so young a child, could be said to be guilty of negligence ; and he was not prepared to say, if there was negligence on the part of the defendants and of Mrs. Park, and no negligence of the child himself, he was not entitled to recover. The Judge, after commenting on the evidence, left two questions to the jury. First, Was there negligence in the servants managing the station, or engine ? And, secondly, Was there negligence in Mrs. Park only ? directing them, if they found negligence in the defendants' servants, to say what damage the pursuer was entitled to. The jury found for the plain- tiff, damages £20. The defendants had leave to enter a non- suit. The Court granted a rule nisi to enter the verdict DIGEST OF DECIDE]^ CASES. 313 for the defendants on all the issues, on the ground that the Waite v. negligence of Mrs. Park, as found by the jury, entitle theEE^^iUiL.^90. defendants to the verdict, or for a new trial, on the ground ^j^f^^f^^^'" that the direction of the Judge respecting the negligence of child identified Mrs. Park was not correct. The plaintifi" showed cause, and the dian L aV^s- case was argued. — Judgment was pronounced for defendants, g^oef °°^''" Lord Campbell, C. J. — In this case we thiiik the rule ought to be made absolute for entering a verdict for the defendants, or for a non- suit. The jury must be taken to have found, that Mrs. Park, the grandmother of the infant plaintiff, in whose care he was when the accident happened, was guilty of negligence, without which the acci- dent would not have happened ; and that, notwithstanding the ne- gligence of the defendants, if she had acted upon this occasion with ordinary caution and prudence, neither she herself nor the infant would have suffered. Under such circumstances, had she survived, she could not have maintained any action against the Company ; and we think the infant is so identified with her, that the action in his own name cannot be maintained. The relation of master and servant certainly did not subsist between the grandchild and the grandmother, and she cannot in any sense be considered as his agent ; but we think that the defendant, in furnishing the ticket to the one and the half-ticket to the other, did not incur a greater liability towards the grandchild than towards the grandmother, and that she, the contracting party, must be implied to have promised that ordin- ary care should be taken of the grandchild. We do not consider it necessary to offer any opinion as to recent cases, in which passengers by coaches, or by sMps, have brought actions for damages, suffered from the neghgent management of other coaches and ships, there being negligence in the management of the coaches and ships, by which they were travelling ; as, at all events, a complete identifica- tion seems to us to be constituted between the plaintiff and the person whose neghgence contributed to the damage which is the alleged cause of the action, in the same manner as if the plaintiff had been a baby only a few days old, to be carried in the nurse's arms. — Eule absolute for a nonsuit. 15th June 1858.— Dalzell, Pursuer, against Tyeee and ^alzell,^ Others, Defenders. — 28 L. J. (Q. B.) p. 53. others. ' •' Owner liable for negligence The lessee of a Ferry hired of the defendant for the day, of a^^c;-.--! a steamer, with a crew, to carry his passengers across. The the vessel. pursuer having paid his fare to H., passed across to the steamer, and while on board, was injured by the breaking of a rope, owing to negligence of the crew in the manner of 314 DIGEST OF DECIDED CASES. M,zELL V mooring. Held, that the crew remained the servants of the jtheks. defendants, who were therefore liable for the negligence ; negUge'noe^'^^ that as the negligence was such as would have made le crew, and the defendants liable to a mere stranger, and the plaintiff the hirer of i i ■ i i • • i i i vesseL was On board with their consent, it was unessential that he was a passenger under a contract with H. tIFFITHS V. JiDLAw. " 1st July 1858. — Griffiths, Plaintiff, against Gidlaw, IZiZZ- Defendant— 21 I.. 3. Ex., p. 405. ;eof the cir- L StffLU CGS iiiidedfrom Action of damage for injuries sustained by plaintiff, a "g°^ *' labourer in the employment of defendant. The plaintiff was employed in sinking a shaft to the depth of sixty feet. Tlie water and earth were taken up by a barrel, and it was under the care of the defendant's servants. The plaintiff was at the bottom of the shaft. There was a ' giddy' pro- vided by defendant, to put on the barrel when water was taken up, in order to prevent any from falling out; and plaintiff had sixpence a-day extra to look after the giddy. The giddy was not used when water. was taken up. The barrel had just reached the top when it fell down on the plaintiff. There was evidence that the hooks by which the barrel had been attached to the chain were out of order, but the pursuer had taken part in fixing it. The men at the top stated that there was no negligence on their part. There was evidence that the place where the chain was wound at the top had become worn. For the defendant it was contended, that there was no liability from negligence of the plaintiffs feUow-servants. The declaration was amended, by allowing the plaintiff to state that the defendant was guilty of personal negligence. The Judge told the jury that defendant would be liable if insufEcient machinery or materials were used by his orders, or dangerous processes or modes of operation, such as the habitual disuse of the giddy. The jury found for plaintiff. A rule nisi was obtained to set aside the verdict, and for a new trial, on the ground of misdirection, in this, that the Judge should have told the jury that if the plaintiff knew DIGEST OF DECIDED CASES. 315 that the machinery employed was insufficient, or the pro- Geiffiths». cesses pursued unsafe, and notwithstanding such knowledge, a workman, continued his employment, he could not recover, and toig^gg^meoh^- amend the second plea by striking out the words, 'limitinaroumBtanoes, ., , ,1 T p , T „ 1 , , => precluded from It to the negligence oi the deiendant s servants. claiming da- mages. Watson, B. delivered judgment. It is admitted for plaintiff, that it has been settled by all the Courts in Westminster HaU, that a master is not responsible for an injury sustained by a servant from the mere negligence of a fellow-servant engaged in the some employ- ment. The Court of Exchequer, in Roberts v. Smith, has decided that it is the master's duty, where he personally interferes, to take care to provide that the tackle and apparatus employed by him is proper and secure, and that he is liable in damage caused by the want of due care in this respect. The same principle was laid down in Paterson v. Wallace, as existing in the law of Scotland ; and it was sought to bring the present case within that, by two cncumstances. The first was, that evidence was given that the hook by which the barrel was attached to the tackle which drew it up was not safe, and that there ought to have been a spring-hook on the inside, which would have prevented the misfortune which led to the accident. The an- swer to this seems to us to be, that the plaintiff himself knew that the hook which was used, and worked by himself, was not attached to the tub or barrel that afterwards fell upon him ; and he seems to have made no observation or complaint in any respect about it. We think that a servant so acting cannot maintain action against his em- ployer ; he himself was contributing to the injury. The second cir- cumstance reHed on was, that the ' giddy' was not used. It is proved that the defendant had suppUed a ' giddy,' for the purpose of being placed on the top of the pit, where the tub was emptied, and it was used when coal or earth was brought up, but not water. It was proved that defendant was in the habit of coming to the place where the pit was sinking several times a-day. We think the defendant is not rendered liable by these circumstances. He had applied a proper apparatus, and the plaintiff's feUow-worlonan neglected to use it. There is no evidence that the defendant had given any du-ection to this effect ; and it seems that, to hold the defendant hable, would be utterly to fritter away the rule, tha,t a master is not responsible for injury caused to one servant by the negligence of another. The Court unanimously found for defendant.— Eule made absolute. 4th November 1858.— Bird, Plaintiff, against The Great ^Bn»l^T^«^^_ Northern Railway, Defendants. — 28 L. J. Ex. Rep. ern Rail. Oo. NegUgence, on which side lies This was an action for injury, alleged to arise from thetteproof of it? neglifence of the Company in the care and management of 316 DIGEST OF DECIDED CASES. ID v. The the line. Defence — Not guilty. At the trial, it appeared Eail. Co. that the engine, on the OQcasion in question, had suddenly ch'SdeiiSgo'i^ off the line, at a spot to which the process of ' fishing' proof of it? the rails, which was being carried on above and below that spot, had not been extended. It was admitted that this process was an improvement, but it also appeared that it had dnly of late been introduced, and on a great portion of the railways it had not been carried out. There was a great deal of evidence on both sides as to negligence. The L. C. Baron left the evidence to the jury, who found ' for the ' defendants, because there was not sufficient evidence as to ' cause of the accident.' Plaintiff moved for a new trial, on the ground of misdirection, in that the jury were not told that there was a prima facie case of negligence, and that, if it was not satisfactorily answered by the defendants, the verdict should be for the plaintiff The occurrence of the injury itself is prima facie proof of negligence. The case of Garfrae v. London and North Western Railway was referred to. Pollock, C. B. — That depends on the nature of the accident ; as, for instance, if it arises from a collision of difiPerent trains on the same Une, then it inay be so. Here it is otherwise : the accident was of a nature consistent with the absence of negHgence — {Skinner V. London and Brighton Railway. 5 Exch. Rep. 787. 19 L. J., Exch. 162). It was further maintained by plaintiff, that he had given as much evidence of neghgence as a passenger possibly would who necessarily must be unable to ascertain the cause of an accident ; and the EaUway being entirely under the control of the Company's servants, the onus prohandi was thrown upon the defendants, so that if they failed satisfactorily to show that there was no neghgence, the plaintiff was entitled to the verdict. Pollock, C. B. — It was for the plaintiff to prove neghgence; the defendants' undertaking was, not to carry safely, but to carry with reasonable care. They are not, as carriers of goods, insurers; there- fore the burden of proof was on the plaintiff. Bt Court. — The whole question was left to the jury, and the meaning of their finding was, that they could not find for the plain- tiff ; in effect, that he had not proved that the accident arose from negligence. It is impossible to say that the accident itself, even if prima facie proof of negligence, was conclusive proof of it ; and if not, then, as there was evidence on both sides, the question was for the jury ; and their finding was substantially a finding for the defend- ants, on the ground that there was no neghgence. Eule refused. DIGEST OF DECIDED CASES. 317 18th December 1858. — Samuel Kebk, Pursuer, against Kekb ». The The Magistrates of Stirling, Defenders. — D. 21, p. ^It™i^g^ 169. 31 Jur., p. 100. Liability of ' -t Magistrates as regards public The pursuer brought an action for solatium, for the death burgh— Pro- of his son, under the following circumstances: — He alleged fity*fofi^suffl"_ that there existed a footpath leading from the Craigs of "^^"^ *®"°®- Stirhng along the side of the mill lade and dam of the burgh of Stirling, onwards to the street called Murray Place ; that the road in question was a public road, and been from time immemorial as such. It is within the burgh of Stir- ling, and, at least the northern part of it, the property of the defenders, as representing the community of said burgh ; or, at all events, it was a public thoroughfare within the control and management of the defenders, and which they were bound to see kept so as to prevent danger to pas- sengers; that it was recognised and dealt with by the defenders as a public road; they altered and repaired the road, and a stone wall of about ^\ feet in breadth formed a continuation of the road for about 36 feet along the dam; the footpath at the top of the said wall is about 3 feet above the level of the water in the dam, and there was a sharp turn or angle in the wall. No fence or other erection existed between the said footpath or road and the dam. That, on 21st October, in the evening, and while it was dark, the pursuer's son, while proceeding along said foot- path, missed his foot on the top of said wall, fell into the dam, and was drowned. The action was against the defenders, the Provost, Bailies, and Town Council, representing the community thereof in regard to all burghal, municipal, and police matters what- soever; and also against them, as owners in trust for behoof of the' said community, of the mill dam of the said burgh, and representing the community in regard to the said property. The defence was a denial that the walk had been recog- nised and dealt with by them sb a public road, and a state- ment that " the bank of the miU lade and mill dam, though often used as a walk, is not at any plax;e along its course 318 DIGEST OF DECIDED CASES. ;ebe v. The one of the public streets or roads of the burgh of Stirling. F Stirling. The banks of the mill lade and mill dam were constructed igistrates as ^^^ ^^ Serve as a road, but for purposes connected with the ;ards public mill. ids within -ri - t tv ip pi* x rgh— Pro- Parties differed as to the form of the issue. Logan, for yfor^insuffl- pursuers, in order to obviate an objection, was prepared to mt fence, p^^ [^ issue whether this thoroughfare was under the con- trol of the defenders, and dangerous for passengers through the want of proper fences. He maiutained that the case of Innes established that Magistrates have a general charge of everything connected with the streets necessary for the safety of passengers ; and, in the case of Dargie, it was laid down that a general duty attached to them, extending over every path within the burgh used and frequented by the community of the burgh as a public thoroughfare. LoHD Deas. — ^Tliere is no allegation that, in point of fact, the Magistrates, as such, ever took possession of, or dealt with that road as a public road. I doubt whether it is enough to say that it is a public road, and whether it must not also be averred that the Magi- strates have taken possession of it as such. Lord President. — The defenders deny that this place had been dealt with by them as a public road, and there is not on record any allegation of obligation on the Magistrates to keep this road in repair. Lord Curriehill. — The pursuer is stating very important doc- trine, that every public thoroughfare, although a mere footpath, within the bounds of the burgh, is under the charge of the Magis- trates, who are responsible for maintaining it in proper order. That may be so ; but I am not aware of any authority for that proposi- tion. The case of Innes and the case of Dargie both referred to pubhc streets. Lord Ivory. — This is raising a very large and a very delicate question, indeed, which, when last before the House of Lords, gave rise to a very great deal of observation. The Magistrates may, as administrators for the community, be proprietors of the ground, in which case their liabilities are just those of ordinary proprietors : that is to say, for the street, whether within burgh or not, they are subject to the same liabiUties with any proprietor. Their Uabihties in that character are totally different from those they may be under in respect of their public duty — qua Magistrates of the burgh. The following issue was approved of: — ' It being admitted that the defenders are proprietors of ' the burgh mill of Stirling, and the mill dam thereto per- ' taining — Whether, on or about the night of the 21st Octo- DIGEST OF DECIDED CASES. 319 ' ber 1856, the now deceased Samuel Kerr, son of the pur-KERR„. The ' suer, when passing along a footpath leading from the^oTi^^^"'^ ' Craigs of Stirling to Murray Place, in the burgh of Stirling Liability of ' along the banks of the miU lade and mill dam of the buro-h J^gSt Jubi'o ^ mill of Stirling, and when at a point thereof, which skirts rrgn-p™"- ' the north side of the burgh mill dam, fell into the saidgt'?f°';f'i^^„t ' dam and was drowned through the fault of the defenders, oi^t'fen^e." ' in not having, as proprietors of the said burgh mill, and ' of the dam thereto pertaining, duly fenced the said dam, ' to the loss, injury, and damage of the pursuer. Damages ' laid at £300.' 13th January 1859. — Senior v. Ward. — 28 L. J. (Q. B.), senio«. 139. ^ Ward. Ooal-pit acci- dent — Eaidt or An action by the mother to recover damages for the Sfured^ party ^ death of her son, John Senior, who, with his two brothersbatingto^thf " and another person, were killed ia descending to a coal rat'ijuryheidto belonging to and managed by the defendant, in whose em- ployment they were at the time. The rope by which they were descending broke and caused the injury. There were special rules framed for the regulation of the colliery, and published at the work. In one of these rules it is pro- vided that every morning, in order to test the engine, ma- chinery, and ropes, &c., the engineer should cause the ropes and loaded cages to be run slowly twice up and dovni the pit before any person descends, and the head banksman should not allow any person to descend or ascend the pit until this had been done, and the ropes, cappings, and cages had been carefully examined by him. This rule had been entirely neglected by the engineman and banksman to the defendant's knowledge for many weeks before the accident. The deceased were all above eighteen years of age, and knew that this rule was habitually violated. On 5th January 1858, a fire occurred accidentally at the colliery, and by it, as was ascertained after examination, the rope by which the cage was worked up and down the shaft of the mine, having been before in good condition, was in jury held to 320 DIGEST OF DECIDED CASES. Semiok v. jured. The next morning John Senior and the others pre- 5ai-pitaooi- sented themselves at the pit-mouth, in order to go down to shness^on the their work (there having been no previous testing of the recayoontoi-^°P^ according to the rules.) The banksman told them iting to the they had better examine the rope before they went down. They disregarded this warning, and got into the cage imme- diately. The rope broke in the descent, and all were killed. The jury returned a verdict for pursuer for £80, with leave to move to enter the verdict for defendant, or for a non-suit. Other two actions were to abide the result. A rule nisi was obtained to enter the verdict for defend- ant, or a non-suit, or for a new trial, on the ground that the negligence which occasioned the death of the plaintiff's son, was not the negligence of the master but of a fellow- workman, not shown to have been incompetent for the dis- charge of the duties devolved on him. Lord Campbell, C. J., delivered the judgment. We are of opinion that the rule to enter the verdict in this case for the defendant, or to enter a non-suit, must be made absolute. The authorities on this subject are all collected and commented upon in the Bartonshill Coal Co. v. Reid. According to these authori- ties, the action would not have been maintainable if the deceased had come to his death purely from the negligence of his fellow- servants em- ployed in the same works with him. However, a strong case of negli- gence on the part of the defendant as contributing to the death has been made out ; andif an answer had not been given to this case, by showing negligence on the part of the deceased, which contributed to his death, we think that the defendant ought to have been found Uable. After the passing of the Act 18 and 19 Vict., c. 108, for the inspec- tion of coal mines, special rules were framed and duly approved of for the regulation of the defendant's colhery ; and by one of these rules it was provided that every morning, before the miners were let down the shaft into the mine, the cage by which they were to de- scend should be let down and pulled up again, heavily loaded, to test the sufficiency of the rope and the tackling. But the defendant who superintended the working of his colhery, instead of enforcing this rule, allowed it to be entirely neglected by Ms workmen for many weeks before the accident happened which caused the death of the deceased. The night before the accident, the rope by which the cage was suspended, being then in good condition, was injured by an accidental fire in the colliery. Next morning the deceased and other miners were let down the shaft without any testing of the rope and tackling. If that testing had taken place the insufficiency of the rope would have been discovered, and the men would all have been saved, but the rope broke and the deceased and other men were killed on the spot. There was most culpable negligence DIGEST OF DECIDED CASES. 321 on the part of the defendant in neglecting the rule, and in keeping Senior v. in his employment a banksman who he knew habitually disregarded Ward. it. Looking to these acts only, although the banksman was the ^"^Jl^pjj^t^ oj. fellow-servant of the deceased, and both the deceased and he were rastoess on tlie employed by the defendant in the colliery as fellow-labourers, we injurcil party should have held the defendant liable, his negligence having mate-i3^|°'/to "he'' rially contributed to the death of the deceased. Bu.t, according to injury held to the report of the learned judge who tried the cause, it was further''*'' damages. in evidence that gross negligence was to be imputed to the deceased himself, and that his negligence materially contributed to his death. With the exercise pf ordinary prudence, he would have escaped the danger, and his life would have been saved. He knew the rule for testing the rope and tackling every morning, and he knew that this rule was habitually violated ; farther, on the morning of the acci- dent he and the other miners were told by the banksman that they had better examine the rope before they went dovsTi. Nevertheless, they disregarded this warning ; immediately getting into the cage, the rope broke as they descended, and they were killed. "We conceive that the Legislature on passing the statute on which this action is brought, intended to give an action to the representa- tives of a person lolled by negligence, only when, had he survived, he himself, at common law, could have maintained an action against the person guilty of the alleged negligence. Under the cir- cumstances of the case, could the deceased have maintained an action against the defendant for what he suffered from the accident ■* We think that he could not, for although the negligence of the defen- dant might have been an answer to the defence that the accident was chiefly caused by the negligence of a fellow-servant— the negli- gence of the plaintiff himselt; which materially contributed to the accident — ^would, upon well-established principles, have deprived him of any remedy — volenti non jit injuria. Judgment for defendant. Eule absolute. 'LE t;. 2 1 st January 185 9. — Habdcastle, Plaintiff, against South hardca|t ^^^ Yorkshire Railway Company, Defendants. 28 L. J,^°^™ e.°iI- T-. 1 ion '^^'^ <^"- Excheq. loy. Parties sus- taining injury This was an action under 9 and 10 Vict., c. 93, for com-^l^^^^^g'^^" pensation for the death of the plaintiffs husband, caused toi^-t--^ through the aUeged negHgence of the defendants. Thepubiio^^path,^^ defendants' predecessors had made a cut from a canal now ^gamstthe pro- belonging to defendants, which consisted of a large reseT-v^^^^,^J.^ voir, out of which there were two branches-one a canalpubUo^ mu- for boats to navigate, and the other a bye-wash or cut for the surplus waters to flow away. There was an ancient X 322 DIGEST OF DECIDED CASES. HARDCASTi.Eti. footpath, from Kotherham to Sheffield which passed alonor South York- t" . . i-i ii SWIRE Eail- the bye-wash, was continued over it by a bridge, and then Parties su°- proceeded to Sheffield. The interjecting ground had also tyfoufn^mto ^° ^® crossed. The bridge was from seven to ten yards open pits or from the end of the buttress or projecting wall, and a per- ciistanoe from a SOU who continued to Walk straight up the pathway along have no^olSm *^^^ bye-wash, and who did not turn a little to the right in against the pro- order to SO over the bridge, would, unless prevented by the prietor-Is fi . , it^li t . such place a arm 01 a gate to a lock upon tlie canal gate, come upon a Kince"? ""'" grass plot, and if he continued walking on would go over the buttress or projecting waU into the reservoir. It was assumed that in this way the deceased met his death. The jury found for the plaintiff, and the defendants had leave to move to enter the verdict for them. The plaintiff con- tended that the defendants made the reservoir and the right of way then subsisting ; and they made it adjoining the way, in fact diverting the way for the purpose, and they were bound to fence the reservoir so as to guard against the almost unavoidable danger of persons passing along the way in the original direction, and thereby walking into the water, and they referred to Barnesv. Ward, 9 Com. B. rep. 392. The defendants denied that the case cited was in point, for there the declaration was that the hole was " abutting upon" the road. Here that could not be truly alleged, nor indeed was the reservoir adjoining the way in the sense in which that word must be construed to make the declaration good. The reservoir was some yards from the way : it was no part of the defendants' duty to guard against persons straying from the way. B. Maetin. — After .such a lapse of time, we think it must be taken that the present way is the lawful one. The authority rehed on by plaiutiff was Barnes v. Ward, and with the judgment in that case we entirely concur. The facts there were that the defen- dant, being possessed of land abutting on a pubhc footpath, exca- vated an area in the course of building a house immediately adjoining the footpath, and left it unprotected, and a person walk- ing in the night-time fell in and was kUled. The Court held that the defendant was liable ; the principle of that decision was that such an excavation was a public nuisance, and that an individual injury arising from such a nuisance was the subject-matter of an action to the party aggrieved. That a private injury arising from a pubUc nuisance is the subject-matter of an action for damages, is h sauce .' DIGEST OF DECIDED CASES. 323 a doctrine as old as any in the common law ; and if we were of HARL.cASTi,i5f. opinion that the state of the reservoir in the present case was a South Yokk- nuisance to the footpath, and that the plaintiff was substantially ^™vay ct>'.''" in the right, notwithstanding that we thought the terms of the de- Parties sus- claration defective, and that there was no such obligation to fence as Jf^'i^^f '"i.^'T then alleged, redress might have been given ; but we are of opinion open p"tl "!r° that she has no right of action against the defendants. "When an toles at some excavation is made adjoining to a public way, so that a person '^j^^j^^'^ ^'"T' * walking 9n it might by maldng a false step, or being affected with have no claim sudden giddiness, or in the case of a horse or carriage who might, againstthepro- by the sudden starting of a horse, be thrown into the excavation, s^h°piac? a it is reasonable that the person maldng such excavation should be public nui- liable for the consequences; but when the excavation is made at^ some distance from the way, and the person falling iuto it would be a trespasser upon the defendant's land before he reached it, the case seems to me to be different. We do not see where the liability is to stop. A man going off a road in a dark night, and losing his way, may wander to any extent; and if the question be for the jury, no one can tell whether he was liable for the consequence of his acts upon his own land or not. We thinlc the proper and true test of legal liability is whether the excavation be substantially adjoin- ing the way, and it would be very dange/ous if it would be other- wise; and if in any case it was to be left as a fact to the jury whether the excavation was suflBiciently near to the highway to be dangerous. When a man dedicates a way to the public, there does not seem any just grounds in reason and good sense that he should restrict him- self in the use of his land adjoining to any extent farther than that he should not make the use of the way dangerous to the persons who are upon it and using it. To do so would be derogating from his grant, but he gives no liberty or license to the persons using the way to trespass upon his adjoining land; and if, in so doing, they come to misfortune, we think they must bear it, and the owner of the land is not responsible. If fences are to be put up, it would seem more reasonable they should be put up by those who use the way, or those who are under the obligation to repair it, than by the person who dedicates it to the public; and as we are clearly of opinion that there is no such obligation to fence, as alleged m the' declaration, and also that upon the above state of facts there is no liability, our judgment is in accordance with the prm- cipleof the case of Blyth v. Topliyi, 19 Law J. (C. P.), 197, which, we think, is the true one. The rule to enter a verdict for the defendants must, therefore, be made absolute. Verdict entered for defendants. .324 DIGEST OF DECIDED CASES. BiRitETT I'. 2d June 1859. — Biekett, Plaintiff, against Whitehaven WhITKHAVEN vV? O .Junction' JUNCTION RAILWAY Co., Defendxmvts. — 2 8 L. J. Exch. 349. Railway Co. Liabilityforne- giigenoe. The defendants had undertaken to carry a passenger to Carlisle. Their line ended at Maryport, and their train, on arriving there, came into collision with some coal waggons, owing to the careless management of a ' switch.' The defendants paid rent for the use of the station with the switch. The siding on which the waggons were, and which the switch worked, was for the traffic of the defendants. The 'switch' was self-acting, and there was no one in charge of it ; but the defendants had a servant close by, for the purpose of looking after some gates, and he could, and sometimes did, see if the ' switch' was working rightly. The passenger being killed in con- sequence of the collision, and the jury having found the defendants guilty of negligence. Held, that there was evidence to sustain the verdict ; and, opinion, that had the negligence been that of the other Company, the defendants would have been liable. DUCKWORTH!). 4,th Juuc 1859. — Duckworth, Plaintiff, against Johnston, Proof of da- Defendant. — 29 L. J. C. P., p. 25. mage to entitle to recover. This was an action by a father to recover compensation for the death of his son, aged about fourteen years. The Court held that action could not be maintained by the re- presentatives of a deceased person under the Act 9 and 1 Vict., c. 93, without proof of actual damage to the parties on whose behalf the action is brought. The mere proof, therefore, of the death by negligence, does not entitle the, executor or administrator to a verdict of nominal damages. The deceased was son of a mason, and earned 4s. a-week, which was applied by his father and mother to the general support of the family, of which he was a member. No evi- dence was given as to whether the sum earned exceeded or was less than his actual cost of maintenance. The jury having found a verdict for the plaintiff, £20 damages, (£i ~ DIGEST OF DECIDED CASES. 825 to father, and £10 to tlie mother), the Court refused toDrcKwoK™. disturb the verdict under the circumstances. They consi- ^""''■"''"'"^■ dered it was probable that there was a balance on the boy's wages every week after deducting his board, and that it had been decided that the prospect of benefit to the parent from his future exertions might be taken into view by the jury in disposing of such questions. 28th July 1859. — Owen Lennan, Pursuer, against Addie LEsnANf. and Miller, Defenders. — D. 21, p. 1382. ^ZlLI^" Non-Iiabilityof mv -, -, , -, . , . employer for in- Jne pursuer was reddsman or labourer in a coal-pit juries caused to belonging to the defenders, and was injured by the fall of athro^rthe stone from the roof of a main road in the pit. He was in**""' "'", ?^=''" ■T gence oi fellow the employment of the defenders, and at the time of the servants. injury .he was employed in redding the said main road. He libelled that the faU was ' occasioned by the gTOSS negligence ' and indiiSference of the defenders, or of their managers and ' others, for whom they are responsible, in not gearing and ' properly securing the roof of the said main road.' The Sheriff (Alison), altering a judgment of the Sheriff- substitute (Tennant), found the pursuer entitled to £100 damages. The defenders advocated, pleading, inter alia, That even assuming that some parties in the employment of the advocators, other than the pursuer himself, were bound to have done what would have prevented the accident, the failure being on the part of fellow-workmen of the respon- dent, in the advocators' service, cannot infer legal liability against the advocators. The Lord Ordinary agTeed with the Sheriff; and, on a Keclaiming Note, the Court, on 19th June 1857, adhered. The facts, as embodied in the inter- locutor of the Lord Ordinary, were, — (1.) That on or about the 26th July 1855, the respondent, whilst working in a coal-pit of the advocators', was severely injured hy the fall of a stone from the roof of a drawing-road, which rendered it necessary that his leg should be amputated. (2.) That the roof of the said road, at the place where the accident happened, was of a dangerous character, being composed of a thick bed of blaise, in which stones were embedded, and 326 DIGEST OF DECIDED CASES. Lenman v. that at the place repeated falls had happened shortly before AUDIE AND , ^ ^ /mi nf ■ ill MiixEE, the accident. (3.) That no sumcient means had been empioyerfonn-^^'^P^^'i ^J ^^6 advocators' Servants, whose duty it v/as to juries caused to secuj-e ^jjg roofs of the roads in the pit, to gear or otherwise a servant, . . through the sccure this dangcrous part of the foad at the time when the g™ce"of"cLw accident happened. (4.) That a few hours before the servant.-!. accident happened a fall had taken place in this part of the roof, and that the accident»happened to the respondent when engaged in clearing away the stuff that had thus fallen. (5.) That the respondent had been ordered to do this work by Samuel M'Lachlan, a brush er in the advocators' employment, without any precautions having been taken by M'Lachlan to guard against the danger of another faU from the same place. Finds, in point of law, That the advoca^ tors are responsible for the negligence of these servants, above set forth, and liable to make reparation to the respon- dent for the injury sustained by the said accident. Lord Jcstice-Clerk (Hope). — This leading fact is established, that there was a dangerous roof over the spot in question. The spot in question was known to be a dangerous part of the roof ; two falls had taken place close to the stone which occasioned the accident within a week, and a fall had occurred that very morning at this very place. The pursuer is sent to work there ; when he is worldng the stone fell. The block was known to he there, and had been thought ' quiet,' and so was allowed to remain. It had been looked to and chapped, the strongest proof that the defenders' people were either 'unskilled,' or did not care to protect themselves against danger. It is said in defence that it was the pursuer's duty to look to this. The answer is clear — there never was attached to the pursuer the real responsibility attaching to the position of reddsman. He was told that he had been promoted to that situation ; but the precise time for his entering upon it had not come. He was told he was to get it with more pay ; but no change was made upon its amount until after the accident, so it cannot he said that he was a reddsman at the time. The duty the pursuer was performing does not necessarily imply that he was a reddsman ; and his superior had very shortly before looked at the place, — a fact of which he was aware. This man had neither the responsibility nor the duty of a reddsman. The other judges concurred. ITie case was appealed to the House of Lord?, and dis- posed of ex parte. — ^The judgment of the Court of Session was reversed on 29th July 1859. DIGEST OF DECIDED CASES. 327 Metcalf, Plaintiff, against Hetherington, Defendant. Metcalf v. 8 W. R, 475. ^™""''- (Harbour In an action for negligence, against Trustees of a Har- circums^ncea bour, sued through their clerk, it was proved that someS°bmty''ou'^ rubbish had been shot into a berth in the harbour, without *™st««s- the privity of the Trustees, who directed their clerk to cause it to be removed, and interfered no farther, and had no further knowledge in the matter : that the removal was insufficiently done at their expense, leaving the harbour unsafe ; that afterwards the harbour-master, not knowing that the berth was then unsafe, but knowing its original state, and what had and what had not been done, directed the vessel, alleged to have been damaged by the negligence of the defendants, to be placed in the berth, where she was placed accordingly, and suffered injury. Held, That there was no evidence of negligence on the part of the Trustees. 24th December 1859. — Maointtre, Advocator, against ji.jj^^yre ... Reilly, Respondent. — 32 Jur., p. 143. „. Eeilly. The respondent was employed as a labourer by the advo-pioy^r? cator in taking down some old brickwork connected with a boiler. During the operations the flooring gave way, and Reilly was injured. He raised an action against M'Intyre, and the Sheriff of Glasgow found damages due, holding that there was a certain amount of negligence on his part, or those for whom he was responsible, in the manner in which the taking down of the brick work was gone about, and in omitting to put up props in the course of the operations. In an advocation the Court recalled the Sheriff's judgment, and assoilzied the employer. LoED Pebsidbnt was of opinion that the circumstances did not show any culpa on the employer's part. ' The flooring previously ' supported a boiler of great weight, and it is after its removal that ' the occurrence took place. The evidence did not show that there ' was any possible mode of preventing it. The suggestion of the ' nossibility of introducing pieces of wood through the furnace bars ' as props was no doubt very ingenious; but as nothing happens where no culpa held on em- 328 DIGEST OF DECIDED CASES. ' without a cause, perhaps no accident ever occurred as to which sug- ' gestions might not be afterwards made by which it might have ' been prevented. The question for the Court was, Whether there ' was any indication of danger, such as demanded or suggested pre- ' cautions which were omitted ; and whether there was, on the part ' of the employer, any negUgence or want of due care or caution in ' his proceedings ? Looking at the whole case, he did not find any • evidence to that effect ; and on these grounds the Court were of ' opinion that the pursuer had failed to prove his case.' ^''lIwsS!" "■ 8*^ February I860.— Robert Gray and Co., Advocators, cireumstanoes against David Lawson, Respondent — 32 Jur., p. 274. where no lia- ^ ^ bility held on employer as to jijjg respondent, Lawson, was permanently iniured while ventilation and _ _ J^ '_ ' J^ . inspection of -working in a coal-pit, caused by an explosion of fire-damp, negligence on and he claimed reparation against his employers. They had employer. given him some pecuniary assistance while confined to the house The Sheriff'-substitute assoilzied ; but the Sheriff altered, and found £40 of damages. In an advocation the Court recalled the decerniture, and assoilzied. LoED Peesidbnt. — ' I think the respondent has failed to establish ' that there was any fault on the part of the advocator. As to the ' ventilation of the mine, the evidence shows that the apparatus was ' complete ; and as to the want of attention to it, the evidence was ' very imperfect. It is not enough to say that, in the opinion of ' some people, there were not a sufficient number of persons to attend ' to the ventilating doors. That is not enough, for there is a differ- ' ence of opinion about that. It appears there was an inspection of ' the mine by the fireman in the morning, and he ascertained its ' condition then. It is not alleged that his inspection was imperfect, ' but the injury is said to have resulted from some negligence that ' occurred at a subsequent period of the day. I have tried to find ' out what that negligence was, and I have tried in vain.' His Lordship stated that the parties and the Sheriff differ in their theo- ries as to the cause of the accident, and that, in his opinion, the workman was guilty of rashness, having been warned of the danger, and exposed himself to the hazard. He then proceeds : ' While, ' therefore, there is a failure to establish blame on the part of the ' master, there is evidence of blame on the part of the respondent ' himself In that view of the matter, it is unnecessary to go into the ' question as to the amount of blame, or the nature of it, or how it ' contributed directly or indirectly to the injury. It is also unne- ' cessary to go into the question, whether the persons underground ' were persons for whom the master was responsible. I can conceive ' questions of considerable difficulty to arise there ; but a settlement ' of these difficulties is not necessary for the decision of this case.' DIGEST OF DECIDED CASES. 329 9th March 1860. — Thomas Brownlie, Advocator, against Bkownliew. James M'Avj.-E.Y, Respondent. 32 Jur., p. 415. D. p. Ma^toTid liable for in- The respondent, James M'Auley, raised an action in the ?''^**°i'iing,aii'd Sheriff Court, Glasgow, against the advocator-defender, forbyZinoom- damages, in respect that while employed as a labourer by ForeTJi."' ""'" the defender in the month of August 1857, he was precipi- tated from the scaffolding of a building which the defender was erecting at Glasgow, in consequence of the said scaffold- ing not having been properly erected, and being insecure and defective, and sustained severe bodily injury, whereby he was rendered unable to earn a subsistence. The defence was a denial of liability, and a denial that the scaffolding was defective and not properly erected. It was the pursuer's duty to carry the materials required for the masons across a scaffolding or gangway, placed over an open space, left for an inside stair, on to the platform on which the men were at work. The building had reached the third floor, the gangway consisting of only four planks, each nine inches broad. Several additional planks having been removed elsewhere on the morning of the accident by order of David Brand, the foreman, the pursuer and the other workmen complained that the gangway was too nar- row and dangerous, but no attention was paid to the matter. When the respondent and another labourer were engaged in carrying a stone on a hand-barrow across tiie gangway, the puxsuer being in the rear and the other man in front, they found their progress obstructed by a tub of lime on the gangway. The other man passed safely on to the platfoi-m, but the pursuer, in making the turn, having no proper space for his foot, placed it on a loose outside plank, which was not fastened to the other four, and which sprang up. The pursuer fell to the gTOund, and was very seriously injured. Several additional planks were added to the gangway the same day. The defender adduced several workmen who saw the gangway at the time, and who swore that, in their opinion, it was safe enough. The Sheriff-Substitute (Bell) found that the gangway was too narrow, and not constructed or kept 330 DIGEST OF DECIDED CASES. ""^M'Tulky"' ^^^^^ ^^*^ ^ due consideration to the safety of the work- Master held men, and that the injury suffered by the pursuer was attri- sufficiency of" butable not to any carelessness or fault of his own, but to inw'^oaused^^''^^ carelessness and fault of the defender or persons in his by the incom- employment, and for whom he was responsible ; and found foreman. £60 of damages. Sheriff Alison adhered, raising the da- mages to £80. The defender advocated, maintaining that there was no fault on his part, and, if any one was to blame, it was the foreman ; that a foreman was a fellow-workman, and it was now settled that a master was not liable for the fault of a fellow- workman ; that the defender sufficiently discharged his duty by appointing a skilled foreman. The pursuer pled that the scaffolding was defective, and that it was made so by the foreman, who caused some planks to be removed on the morning of the occurrence; that a foreman was not a fello w- workman : he was his master's deputy, and used his own discretion in controlling and superintending the mea The master was liable for defects in the foreman employed by him. Loeh President. — It appears that the platform or scaffold from v,rliioli the pursuer fell, which consisted of seven planks some days previous, was composed, at the time of the accident, of only four. The alteration is proved to have been made by orders of David Brand, the foreman ; and I think the evidence clearly shows that tlie injury arose from two causes — 1st, The narrowness of the space left ; 2d, The loose way in which the outside plank was left. The pursuer was carrying a hand-harrow along with another person. Being the hindmost, as the other turned inwards he was obliged to turn outwards, and the scaffolding being too narrow, he was obhged to place his foot on the loose outside plank, which rose in the air, and he was precipitated to the bottom. The foreman himself says the accident was owing, 1st, To the scaffold being made too narrov,'; 2d, To the outside plank not being fastened at the ends. It also appears that the foreman's attention had been drawn to the condi- tion of the scaffold by a man of the name of Deacon, who says he was afraid to carry things across the scaffold, as he considered it un- safe ; and the foreman said he would send the men to make it right Thus the foreman was made aware of the insecurity of the scaffold, and admitted that it was unsafe. It further appears that nothing was ever done; that, on the contrary, he expressly told the pursuer to carry the stone which the other people had left, in consequence of the insecurity of the scaffold. Further, immediately after the accident, the additional planks were put up, which should have been DIGEST OF DECIDED CASES. 331 put there before — a circumstance which goes far to account for Browslie v. some discrepancies in the e-vidence. Some of the -witnesses obviously M'Aui.ey. speak to what they saw after the accident,' others before it. Kab*rfor'''fn- The question then arises, Was the defender responsible for an sufficiency ot occurrence so occasioned? The defender himself was not present. ?°^*^°|''*°S.and He is a builder; he delegates the superintendence of his undertak-by"he'iiicmn- ings to somebody else; and David Brand was his foreman here, peteucy of liis It was he who had the direction of the scaffold, who ordered the'°™"'"^" planks to be taken away, who sent the additional planks after the accident, who desired the pursuer to carry the stone when the others refused, and who was made aware of the insecure state of the scaffold. It has been argued to us that the recent judgment of the House of Lords, in regard to the non-liability of masters for injuries re- ceived by their servants through the negligence of their fellow- labourers, excludes the claim here made against the defender. I have always stated, in such cases as the present, that the only real difficulty I experience was to determine who was to be regarded as a fellow- labourer. As I read the law of England, I do not conceive there is any difference in principle between it and the law of Scotland.- In the BartonshiU case, the difference between this case and the House of Lords turned, I think, on the question whether the person who imme- diately contributed to the injury was to be regarded as afellow-labourer or not. We thought he was not, but the House of Lords thought otherwise. The present case appears to me not to fall within the judgment of the Baitonshill case. In the first place, one cause of the injury was the imperfection of the machinery or scaffolding provided on the occasion. I do not understand the judgment of the House of Lords to have proceeded on this — that a person who carries on works of this kind, and who is bound to provide proper machinery for his workmen, is not responsible for the consequences which may ensue from the machinery being imperfect in extent or quality, or insecure in point of construction. On that principle, I think the case is taken out of the case of BartonshiU. I further think the judgment in the BartonshiU case has not decided, what the House of Lords may yet decide — that when a person, who carries on a trade of such a kind that he cannot be personally present, and in which he dele- gates to a foreman his authority to superintend the operations and control the workmen, that the person placed in that position is a fellow-labourer. I have great difficulty in arriving at the conclu- sion that he is a fellow-labourer. In this case the injury is trace- able to the individual acts of the foreman himself. The case might have been made to depend somewhat on this. Whether the person placed in the position of a foreman was a person of known skill, character, and prudence. If the master had proved that he had en- ;. 112, and this notwithstanding the penalties m the Act on the owner, 184, 185 ; held not relevant the statement that, by the unsea- worthiness of the ship, the seaman's health was injured, the declaration not alleging prior knowledge by the owner, 184 ; owner of steamer leased out held liable for negligence of the crew appointed by him, 313. Solatium due for wounded feelings of relatives, in cases of death by negligence, 11 • not acknowledged in the law of England, 129 ; action held relevant for solatium alone, 85 ; is it claimable by brothers and sisters, 216. 846 INDEX TO DECISIONS. Statute 8 and 9 Vict., c. 93 ; as to compensation for injury from accidents, (England,) 336. Steamee — Fault on pursuer held not contribviting directly to collision, not a bar to action for damages, 120 ; owner of steamer leased to carry passen- gers held liable for negligence of crew, 313. Strangek assisting servants, and injured by negligence of the other servants, held in England to have no claim for damage against the master, who did not know of the circumstances, and not negligent, 274-276 ; held to fall under the same rule as injuries to fellow-workmen, 274 ; whether master liable for injuries to a stranger assisting, arising from defective machinery used in the work ; held relevant for an issue, 207. SuB-CoNTRACTOK liable for injuries caused by their workmen, 76, 115. Tenants of mines under a lease, employing or contracting with parties under them to do certain portions of the work, of taking out the ironstone or coal, held a case of master and servant, and not contractor, and the tenant held liable for injury caused by the careless workings, 145, 1 52. Tradesman liable for insufficiency of work, 257-259. Trespassers — Parties trespassing, and sustaining injury, barred from claiming damages from owners of premises, 289 ; see cases of slight trespass held not to bar claim, 6, 77 ; see page 321; persons wandering off the road in the dark, and sustaining injury, who liable ? 323 ; owner not entitled to injure a trespasser by negligence, if owner see a trespasser, and while sport- ing fire at a mark so carelessly as to hurt him, he would be responsible, 276 ; see 142. Ventilation of Mines — Owner or lessee liable for imperfect ventilation, and want of examination, and from fire-damp explosions, 1 87-9 ; not liable if he can shew that he has done his duty in this respect, 328. TABLE or CASES. Pursuer, Defends Ainslie ver. Stewart Pajre 70 Aitken ver. Douglas 50 Allan ver. M'Leish 20 Allan ver. Simpson and Mack 45 Allan ver. Heyward 11 Alsop ver. Yates . 296 Anderson ver. Pyper & Company . 23 Anderson ver. Brownlee 28 Baird ver. Hamilton 29 Eaird ver. Addie & Millar . 18.7 Balfour ver. Baird & Brown . 289 Barnes ver. Ward . 322 Bird ver. The Great Northern Railway . 315 Birkett ver. Whitehaven Junction Eailway Co 324 Black ver. CaddeU 6 Blake ver. Midland Eailway Company 129 Blyth ver. Toplin 323 Brash and others ver. Steel 90 Bridge ver. The Grand Junction Railway Co. 52 Brownlee ver. M'Auley . . . . 329 Brownlee, Junr. ver. Tenant & Co., and Gardiner 197 Brown ver. M'Gregor . . . . 10 Brydon or Marshall, and other 5, ver. Omoa & Cleveland Iron and Coal C 3. 137 Bush ver. Steiuman 3 Callendar ver. Eddington . . . . 149 Carpue ver. The London and Brighton Railway 86 Chapman ver. Parlane . . . . 29 Christie ver. Griggs 7 Clark or Keid, and others ver. The Bartonshill Coal Company 221 Clayards ver. Dethick . . . . 268 Cleghorn ver. Taylor &c. (Spittal's Trustees) 243 Clyde Shipping Company ver. River Clyde Trustees 79 Cook and Children ver. Bell . ... 283 Cook or Haggart ver, Duncan . . . . 287 Couch ven Steele . . . . 183 Croft ver. Alison . . . . 25 Dalzell ver. Tyree and others 313 Dansey ver. Richardson . . . . 185 Dargie ver. The Mag. & Town Council of Forfar 208 348 TABLE OF CASES. Pursuer. Davidson Davis Degg Dow Dowell Duckworth Ellis Findlater Fraser and Father Gibb Gordon Gray Gray & Co. Greenhorn, A. J. Greenland Griffith Gunn Hamilton Hardcastle Hardie Harris Hill Hislop Hobbitt Holder Hood or Cargill Horridge Hunter Hutchinson Innes Itchen Bridge Company Johnston Lord Keith Kerr Knight Lamb Latch Laugher Lennan Linwood Lenaghan Little Littledale Lygo Lynch Lyon Lumsden Manby Marshall ver. ver. ver. ver. ver. ver. ver. ver. ver. ver, ver. ver. ver. ver. Ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. ver. Defender. The Monkland Railway Company Mann Midland Railway Company Brown & Company . The General Steam Navigation Co, Johnston Sheffield Gas Consumer's Company Duncan Dunlop and Montgomery TheTrustees of the Liverpool Docks Davie Brassey Lawson Addie and Millar Chaplin Gidlaw Gardiner The Caledonian Railway Company The South Yorkshire Railway Co. * Addie, Millar, and Rankin Baker Caledonian Railway Company Sir P. C. Durham . London & North Western Rail. Co, Soulby The Dundee and Perth Railway Willoughby The Edin. & Glas. Union Canal Co, The York, Newcastle & Berw. Rail, The Magistrates of Edin., & others The Local Bd. of Health, Southmp The Shrewsbury Railway Company Keir .... The Magistrates of Stirling Fox . Lyon The Rumner Railway Company Pointer Addie and Miller . Hathorn The Monkland Iron and Steel Co. The Summerlee Iron and Coal Co, Lord Londsdale Newbold Martin Russell & Son The St. Helen's Canal and Railway The York, Newcastle & Berw. Rail. Page 217 83 274 8,5 278 324 173 55 28 308 70 156 328' 216 119 314 21 260 321 301 11 203 77 107 333 104 155 48 122 1 311 167 8 317 127 61 296 31 325 12 279 207 37 195 273 54 238 304 154 TABLE OF CASES. 8-i9 Pursuer. Metcalf Millar MUlar Milligan Mitchell Morris Morton Mackenzie M'Glashan M'Guire M'Intosh or M'Auley M'lntyre Mackay M'Kechnie M'Laren M'Lauchlan M'Lean M'Naughton M'Neill Neilson's Executors Neilson Nisbett O'Brien Ogilvie and othera O'Neil Overton Paterson Parnaby Paterson Peachy Pollock Priestly Quarman Kandleson Rankin Kapson Keedie R R Rigby Rosewell Ruck Scrip Senior Seymour ShieUs Skinner Sly Smith Defender. ver. Hetherington rec. Road Trustees ver. Harvie ver. Wedge ver. Crasweller . ver. The Monkland Railway Company ver. The Edinburgh and Glasgow Rail. ver. M'Leod ver. Dundee & Perth Railway Company ver. The Bartoushill Coal Company jier. Wm. Fernie, Buist & Co. . ver. Reilly );er. Waddell and others ver. Henderson ver. Rae .... ver. Road Trustees rer. Russell, M'Nee & Co. ver. The Caledonian Railway Company ver. "Wallace & Co. ver. W. Rodger & Sons . rer. William Dixon ver. Dixon & Co. ver. Burn ver. The Magistrates of Edinburgh ver. Neilson ver. Freeman ver. Monkland Iron and Steel Company ver. The Lancaster Canal Company . ver. Wallace & Co. ver. Rowland ver. Wilkie , . . ' ver. Fowler ver. Burnett .... ver. Murray ver. Dixon & Co. ver. Cubitt , . . • ver. The London & North Western Rail, ver. Henson . . . - ver. Samuel Low ver. Hewitt ver. Prior . . . ■ ver. Williams ver. Eastern Counties Railway ver. Ward ver. Maddox ver. The Edinburgh & Glasg. Rail. Co. ver. London and Brighton Railway Co. ver. Bdgleyj . . , • ver. Milne . • • • Page 327 44 43' 74 166 272 91 46 102 233 93 327 22 306 42 41 115 260 168 190 130 145 200 26 299 128 125 309 176 166 257 50 71 53 152 76 107 154 165 120 5 310 175 319 128 254 316 33 350 TABLE OF CASES. Pursuer. Defender. Sneddon ver. Addie, Millar & Eankine . Sutherland tier. The Monkland Railway Company Swift ver. Christie . . . . Sword ver. Cameron and Galletly Statute 9 and 10 Vict., cap. 93. . . Tarrant ver. Webb Theobald ver. Eailway Passengers' Assurance Co. Tuff ver. Warman . . . . Vaughan ver. The Tuff Valley Eailway Company Vose ver. The Lancashire & Yorkshire Eail. Waite ver. North Eastern Eailway Company Wallis ver. Manchester and Lincolnshire Eail. Ward ver. Lee . Weston & Sons rer. Corporation of Tailors of Potterrow Whitelaw ver. Moffat and Pollock Whitehouse rer. Birmingham Canal Company Wigget ver. Pox .... Wigmore ver. Jay . ... Williams ver. Clough 98 281 193 93 336 252 195 276 334 298 311 174 311 66 112 282 241 121 309 TUHNBULL AND SPEABS, PIWNTEES, EDINEURCH.