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the owner (m). The master is bound, as between himself and his servants, to exercise due care in selecting proper and competent persons for the work (whether as fellowworkmen in the ordinary sense, or as superintendents or foremen), and to furnish suitable means and resources to accomplish the work (n), and he is not answerable further (o).

(m) Hedley v. Pinkney and Sons' S. S. Co., '92, 1 Q. B. 58, 61 L. J. Q. B.179, C. A.

(n) According to some decisions, which seem on principle doubtful, he is bound only not to furnish means or resources which are to his own knowledge defective: Gallagher v. Piper (1864), 16 C. B. N. S. 669, 33 L. J. C. P. 329. And quite lately it has been decided in the Court of Appeal that where a servant seeks to hold his master liable for

injury caused by the dangerous condition of a building where he is employed, he must allege distinctly both that the master knew of the danger and that he, the servant, was ignorant of it: Griffiths v. London and St. Katharine Docks Co. (1884), 13 Q. B. Div. 259. Cp. Thomas v. Quartermaine (1887), 18 Q. B. Div. 685, 56 L. J. Q. B. 340.

(0) Lord Cairns, as above: to same effect Lord Wensleydale, Weems v.

204; Romona Oölitic Stone Co. v. Johnson, (Ind. App.) 33 N. E. Rep. 1000; Consolidated Coal Co. v. Bonner, 43 Ill. App. 17; Cowan v. Chicago etc. R. Co., 80 Wis. 284; 50 N. W. Rep. 180; Propsom v. Leathem, 80 Wis. 608; 50 N. W. Rep. 586.

The master must furnish a reasonably safe place for the servant to work. Heckman v. Mackey, 35 Fed. Rep. 353; Hannibal etc. R. Co. v. Fox, 31 Kan. 586; 15 Am & Eng. R. Cas. 325; Hulle han v. Green Bay etc. R. Co. 68 Wis. 520; 31 Am. & Eng. R. Cas. 332; Kelly v. Erie Tel. etc. Co. 34 Minn. 321; Green v. Banta, 48 N. Y. Superior Ct. 156; Porter v. Silver Creek & M. C. Co., 84 Wis. 418; 54 N. W. Rep. 1019; Davies v. Griffith, 27 Wkly. Law Bul. 180; Stuber v. McEntee, 19 N. Y. S. Rep. 900. Competent servants. Supporting the text, vide Alabama etc. R. Co. v. Waller, 48 Ala. 459; New Orleans etc. R. Co. v. Hughes, 49 Minn. 258; Moss. v. Pacific R. Co., 49 Mo. 167; Chicago etc. R. Co. v. Doyle, 18 Kan. 58; Jordan v. Wells, 3 Woods, 527; Blake v. Maine Cent. R. Co., 70 Me. 60; Tyson v. South & N. A. R. Co., 61 Ala. 554; Indiana Mfg. Co. v. Millican, 87 Ind. 87; Huffman v. Chicago etc. R. Co., 78 Mo. 50; Hilts v. Chicago & G. T. R. Co., 55 Mich. 437; Brennan v. Gordon, 13 Daly, 208; Bonner v. Whitcomb, 80 Tex. 178; 15 S. W. Rep. 899; Copping v. New York & H. R. R. Co., 122 N. Y. 557; 25 E. Rep. 915; affirming 48 Hun, 292: Harper v. Indianapolis & St. L. R. Co., 44 Mo. 567; Flike v. Boston & A. R. Co., 53 N. Y. 549; Kersey v. Kansas City etc. R. Co., 79 Mo. 362; 17 Am. & Eng. R. Cas. 638; East Tenn. etc. R. Co. v. Gurley, 12 Lea, 46; Mentzer v. Armour, 19 Fed. Rep. 373; Huffman v. Chicago etc. R. Co., 78 Mo. 50; 17 Am. & Eng. R. Cas, 625; Satterly v. Morgan, 35 La. An. 1116; Sutton o. New York, etc. R. Co., 66 Hun, 632; 21 N. Y. S. Rep. 312.

Servants of sub-contractor. Attempts have been made to hold that the servants of sub-contractors for portions of a general undertaking were for this purpose fellow-servants with the servants directly employed by the principal contractors, even without evidence that the sub-contractors' work was under the direction or control of the chief contractors. This artificial and unjust extension of a highly artificial rule has fortunately been stopped by the House of Lords (p).

Volunteer assistant is on same footing as servant. Moreover, a stranger who gives his help without reward to a man's servants engaged in any work is held to put himself, as regards the master's liability towards him, in the same position as if he were a servant. Having of his free will (though not under a contract of service) exposed himself to the ordinary risks of the work and made himself a partaker in them, he is not entitled to be indemnified against them by the master any more than if he were in his regular employment (g). This is really a branch of the doctrine "volenti non fit iniuria," discussed below under the title of General Exceptions.

Mathieson (1861), 4 Macq. at p. 227: “ All that the master is bound to do is to provide machinery fit and proper for the work, and to take care to have it superintended by himself or his workmen in a fit and proper manner." In Skipp v. E. C. R. Co. (1853), 9 Ex. 223, 23 L. J. Ex. 23, it was said that this duty does not extend to having a sufficient number of servants for the work: sed qu. The decision was partly on the ground that the

plaintiff was in fact well acquainted with the risk and had never made any complaint.

(p) Johnson v. Lindsey, '91, A. C. 371, overruling Wiggett v. Fox, 11 Ex. 832, 25 L. J. Ex. 188.

(q) Potter v. Faulkner (1861), Ex. Ch. 1 B. & S. 800, 31 L. J. Q. B. 30, approving Degg v. Midland R. Co. (1857), 1 H. & N. 773, 26 L. J. Ex. 174.

Volunteer assistant is on same footing as servant. Supporting the text, vide Johnson v. Ashland Water Works Co. 71 Wis. 553; 37 N. W. Rep. 825; Eason v. S. & E. T. Ry. Co., 65 Tex. 577; Mayton v. T. & P. Ry. Co., 63 Tex. 77; Barstow v. Old Colony R. Co., 143 Mass. 535; Osborne v. Knox, 68 Me. 49; Flower v. Pennsylvania R. Co., 69 Pa. St. 210; Chicago etc. R. Co. v. West, 125 Ill. 320; 17 N. E. Rep. 788.

On

Exception where the master interferes in person. the other hand, a master who takes an active part in his own work is not only himself liable to a servant injured by his negligence, but, if he has partners in the business, makes them liable also. For he is the agent of the firm, but not a servant (r): the partners are generally answerable for his conduct, yet cannot say he was a fellow-servant of the injured man.

Employers' Liability Act, 1880. Such were the results arrived at by a number of modern authorities, which it seems useless to cite in more detail (s): the rule, though not abrogated, being greatly limited in application by the statute of 1880. This Act (43 & 44 Vict. c. 42) is on the face of it an experimental and empirical compromise between conflicting interests. It was temporary, being enacted only for seven years and the next session of Parliament, and since continued from time to time (t); it is confined in its operation to certain specified causes of injury; and only certain kinds of servants are entitled to the benefit of it, and then upon restrictive conditions as to notice of action, mode of trial, and amount of compensation, which are unknown to the common law. The effect is that a "workman" within the meaning of the Act is put as against his employer in approximately (not altogether, I think) the same position as an outsider as regards the safe and fit condition of the material instruments, fixed or movable, of the master's business. He is also entitled to compensation for harm incurred through the negligence of another servant exercising superintendence, or by the effect of specific orders or rules issued by the master or some one representing him; and there is a

(r) Ashworth v. Stanwix (1861), 3 E. & E. 701, 30 L. J. Q. B. 183.

(s) They are well collected by Mr. Horace Smith (Law of Negligence, pp. 73-76, 2nd ed.).

(t) Further legislation has been expected almost every year, but nothing has been done yet.

special wider provision for the benefit of railway servants, which virtually abolishes the master's immunity as to railway accidents in the ordinary sense of that term. So far as the Act has any principle, it is that of holding the employer answerable for the conduct of those who are in delegated authority under him. It is noticeable that almost all the litigation upon the Act has been caused either by its minute provisions as to notice of action, or by desperate attempts to evade those parts of its language which are plain enough to common sense.

Resulting complication of the law. On the whole we have, in a matter of general public importance and affecting large classes of persons who are neither learned in the law nor well able to procure learned advice, the following singularly intricate and clumsy state of things.

First, there is the general rule of a master's liability for his servants (itself in some sense an exceptional rule to begin with).

Secondly, the immunity of the master where the person injured is also his servant.

Thirdly, in the words of the marginal notes of the Employers' Liability Act," amendment of law" by a series of elaborate exceptions to that immunity.

Fourthly, "exceptions to amendment of law" by provisoes which are mostly but not wholly re-statements of the common law.

Fifthly, minute and vexatious regulations as to procedure in the cases within the first set of exceptions.

It is incredible that such a state of things should nowadays be permanently accepted either in substance or in form. This, however, is not the place to discuss the principles of the controversy, which I have attempted to do elsewhere (u). In the United States the doctrine laid down

(u) Essays in Jurisprudence and Ethics (1882) ch. 5. See for very full

information and discussion on the whole matter the evidence taken by the Select

by the Supreme Court of Massachusetts in Farwell's case has been very generally followed. Except in Massachusetts, however, an employer does not so easily avoid responsibility by delegating his authority, as to choice of servants or otherwise, to an intermediate superintendent (x). There has been a good deal of State legislation, but mostly for the protection of railway servants only. Massachusetts has a more recent and more comprehensive statute based on the English Act of 1880 (y). A collection of more or less detailed reports "on the laws regulating the liability of employers in foreign countries" has been published by the Foreign Office (z).

Committees of the House of Commons in 1876 and 1877 (Parl. Papers, H. C. 1876, 372; 1877, 285). And see the report of a Select Committee of the House of Commons on amending Bills, 1886, 192.

(x) Cooley on Torts, 560; Shearman and Redfield, ss. 86, 88, 102. And see Chicago M. & S. R. Co. v. Ross (1884), 112 U. S. 377. Also a stricter view than

ours is taken of a master's duty to disclose to his servant any non-apparent risks of the employment which are within his own knowledge: Wheeler v. Mason Manufacturing Co. (1883), 135 Mass. 294.

(y) See Mr. McKinney's Article in L. Q. R. vi. 189, April 1890, at p. 197.

(z) Parl. Papers, Commercial, No. 21, 1886.

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