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sition. The cases of Paterson v. Wallace, 1 Macq. 748, and Bryden v. Stewart, 2 Macq. 30, are strong authorities in favour of the plaintiff. In the former it was laid down that a master is bound to take all reasonable precautions to secure the safety of his workmen, more especially if the work be of a dangerous character, and the persons engnged proverbially reckless : and the same principle was enunciated in the latter case. This is not simply the case of a man receiving an injury from the carelessness or negligence of a fellow-workman; for, here, the negligence was that of the plaintiff's superior officer, whose orders he was bound by the ship's articles to obey. He was not, therefore, a volunteer.
Williams, J.—I am of opinion that there was no misdirection in this case. I think there was no foundation for the argument that Simpson, the chief engineer of the vessel, and the plaintiff, stood in any *other relation towards each other than that of ordinary fellow-servants. Then, applying the rule of law which is now 'firmly established, the common employer is not liable to either for an injury sustained through the negligence of the other. In order to take this case out of the ordinary rule, it was contended that here there was evidence of negligence on the part of the employers themselves. In order to make that out, there must be reasonable evidence to show that they were to blame either in respect of their not having provided proper machinery and appliances, or not having retained competent workmen. I do not find any evidence at all of any default in either of these particulars. If the winch was out of order, it was owing to Simpson's negligence. There was no evidence, nor any suggestion, that Simpson was not a perfectly competent engineer.
Byles, J.—I am of the same opinion. J observe that the first count of the declaration alleges an undertaking on the part of the defendants to provide good and sufficient machinery and apparatus necessary for the purpose of navigating the vessel during the voyage; and the second count states that the machinery and apparatus were by the negligence and default of the defendants constructed unsafely and with defective and improper materials, and that the defendants knew it. I am unable to discover any evidence to go to the jury in support of either of these counts. Turning to the opinion given by Lord Cranworth in the case of The Bartonshill Coal Company v. Reid, 3 Macq. 266, I find his Lordship thus lays down what he conceives to be the result of the authorities,—"The law of England considers that the person who undertakes the service undertakes it knowing that he is liable to injury as well from accidents that cannot be guarded against as *from neglect or mismanagement on the part of those who r*toq are engaged with him in the common occupation. The Court of Exchequer came to the conclusion that the principle which makes the master liable to complaints made ab extra, does not make him liable to complaints arising intra the whole body, consisting of himself and his workmen. 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 machinery in a safe and proper condition, so as to protect the servant against unnecessary risks." That is the extent of the master's responsibility. The obligation the law casts upon him, is, to take due and proper care that his machinery is sufficient and his workmen reasonably competent. Here, the obligation sought to be imposed on him is, that of a warranty. There is no evidence here of any cause of action arising out of the breach of any duty imposed by law upon the defendants. I cannot entertain a doubt that the direction of my Lord to the jury was quite right; and, upon the facts proved and admitted, it seems to me to be quite impossible to amend the record so as to disclose a good cause of action.
Keating, J.—I am of the same opinion. The facts appear to me to bring the case precisely within the principle which has been established by a long series of authorities beginning with Priestley r. Fowler, 3 M. & W. l,f viz., that a master is not liable for an injury resulting to his servant from the negligence of a fellow-servant, where there has been no negligence or want of due care on the part of the master in providing competent machinery and apparatus, or in eraploying competent workmen. A master is by law bound to provide proper and efficient machinery and reasonably competent workmen. *440i ^as there any evidence of any *failure of that duty on the -* part of the defendants in this case? It is conceded that there was none as to the servant they employed. And, assuming that the winch required something to be done to it to put it in a state to render it safe, the defendants had on board their vessel a competent chief engineer whose duty it was to see it doue, and who did so, though unfortunately too late. It is also not unworthy of notice that the plaintiff himself was an engineer, and knew the danger of working the winch in its imperfect state. The highest authority known to our law,—the House of Lords,—has laid down the rule in a manner which excludes the defendants from liability in this case. If it were otherwise, the responsibility of the owners of ships, and especially of steam-vessels, would be beyond all limit. Although I deeply commiserate the serious disaster which has befallen the plaintiff, 1 think my Lord could not have, consistently with the law, taken any other course than he did.
Erle, C. J.—1 entirely concur in the judgment which has been delivered by my three learned Brothers. The conclusion of law was most reluctantly forced upon me at the trial, and now. I do not remember a case that ever made me more desire that the plaintiff should have some compensation for the very terrible calamity which he sustained. The rule must be discharged.
(a) The Scotch law upon this subject is well illustrated by the judgment of Lord Cookburn in Dixon v. Hankin, 14 Sess. Cas. 480. In an action of damages against the proprietor of a coal-pit, at the instance of the widow of a workman who had been killed by an accident, the Court repelled the defenoe that no liability could attach to the defender, the accident having
been occasioned by the negligence of *fellow-workmen in the same service, for which *441] a master was not responsible. Lord Cockburn says: 11 I need not enter into the details
of the proof. It is sufficient to say that I agree with the two sheriffs and the lord ordinary in their view of the facts. The result is, that the pursuer's husband lost his life through blamoable negligence on the part of those for whom the defender is liable. Bnt it has been maintained, and this is the only singularity of the 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 employed them all, is not liable in damages. This plea rests solely on the authority of two or throe very recent decisions of English Courts (referring to Priestley r. Fowler, 3. M. & W. l,f Hutchinson t. The York, Newcastle, and Berwick Railway Company, i Eich. 343,f and Wigmore v. Jay, 5 Ezch. 354f). And these decisions certainly do seem to determine, that, in England, where a person is injured by the culpable negligence of a servant, that servant's master is liable in reparation, provided the injured person was merely one of the public; but that be is not so responsible if the person injured happened to bo 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 be is not liable if the coachman only kills the footman. If this be the law of England, I speak of it with nil due respect. But it most certainly is not the law of Scotland. I defy any industry to produce a single decision, or dictum, or institutional indication of opinion, or any trace of any authority, to this effect, or of this tendency, from the whole range of our law. If such an idea exists in oar system, it has as yet lurked undetected. It has never been directly condemned, because it bas never been stated. The case of Sword r. Cameron, 1 Seas. Cas. 493, gave the Court a fair opportunity of applying the principle if it existed; for, there it was a workman who had been hurt by the negligence of his fellow-workers, but the employer was found liable. Many similar cases have occurred, and they have all been disposed of without the interference of this conception. The whole course of our practice bas proceeded on the assnmption that the liability of an employer did not cease merely because, besides employing the wrongdoer, he also employed him to *whom the wrong was done. I am clear for adhering to our own rule, and to our own legal and practical habits. The new rule seemed to be recommended to us, [*442 not only on account of the respect due to the foreign tribunal,—the weight of which we all acknowledge,—but also on account of its own inherent justice. This last recommendation fails witb me, because I think that the justice of the thing is exactly in the opposite direction. I have rarely come upon any principle that seems less reconcilable to general legal reason. I can conceive some reasons for exempting the employer from liability altogether; but not one for exempting him only when those who act for him injure one of themselves. It rather seems to me that these are the very persons who have the strongest claim upon him for reparation, because they incur damage on his account, and certainly are not understood by our law to come under any engagement to take these risks on themselves."
See observations on the conflict between the English and the Scotch law on this subject, in the Introduction to Hay's Digest of Decisions on the Liability of Masters and Servants for Negligence, p. xxiii. et seq.
The same rule has been very generally adopted in this country; but in the case of The Railroad Co. v. Stevens, 20 Ohio 435, the Company was held liable for an injury to the engineer, caused by the negligence of the conductor of the train, who stood to him "in the relation of a superior." This distinction (which was adopted also in Chamberlain v. The Railroad, 11 Wis. 238) is considered perfectly sound by the annotator of Wilson v. Peverly, 1 Am. L. C. 648 (4th ed.), but was rejected in Ryan v. The Railroad, 11 Harris (Pa.) 384. It is, however, not sufficient to exempt the master from liability, if the accident was caused by the want of the proper safeguards—as a fusible safety-plug to a boiler—that the negligence of another servant contributed to the result, or that it might have been prevented by his vigilance: Cayzer v. Taylor, 10 Gray 274; but in Seavcr v. Railroad, 14 Gray 466, the Court declined to express an
opinion as to whether "a railroad corporation are bound to use reasonable care, in furnishing a suitable safe engine and car, in favour of a person employed by them," and carried over their road without payment of fare, though the better opinion seems to be that the master is bound to use proper care in selecting his servants and providing machinery, as in Buzzell v. Manufacturing Co., 48 Maine 113, where it was held the duty of the employer to provide suitable bridges or ladders necessary to be used by his servants in going to or returning from labour.
Of course if the plaintiff's own negligence contribute to the accident he cannot recover, as in Frazier v. The Railroad Co., 2 Wright (38 Pa. St. R ) 104, where the judgment of the Court below was reversed because of a refusal to instruct the jury that " if the plaintiff (who was a brakesman), knew that his conductor was habitually careless, and chose to continue in service with him, and did not inform the Company of his fercd from further carelessness, even
known acts of carelessness and refuse if the Company did also know." See
to serve with him, he can have no claim also Redfield on Railways, section 170,
against the Company for injuries suf- p. 386, et acq.
In the Matter of an Arbitration between ELTAS UNDERWOOD and The BEDFORD and CAMBRIDGE RAILWAY COMPANY. Nov. 23. ,
It ia highly improper,—though not per se a ground for setting aside his award,—for an arbitrator to employ the attorney of one of the parties to the reference (though his own attorney also), to assist him in framing the award.
This was a reference under the Lands Clauses Consolidation Act. 8 & 9 Vict. c. 18. The Bedford and Cambridge Railway Company requiring certain land belonging to Mr. Underwood, gave him the notices under the Act. Mr. Underwood demanded 250/. by way of compensation. The Company offered him 150/., which he declined to accept, and an arbitrator was appointed. The arbitrator awarded the claimant 200/.
Mellor, Q. O, on behalf of the Company, on a former day in this term, obtained a rule calling updh Underwood to show cause why the award should not be set aside, on the ground of misconduct on the *±±<n Part oftne *arbitrator (a layman), in this that he consulted and J was attended by one Barker, the attorney of Underwood (who was also the private solicitor of the arbitrator) in reference to his award, in the absence of the Company's agent, and that the award was prepared by Barker, who had acted on the reference as the advocate and attorney of Underwood. He referred to Walker v. Frobisher, 6 Ves. 70, Fetherstone v. Cooper, 9 Ves. 67, Dobson v. Groves, 6 Q. B. 637 (E. C. L. R. vol. 51), The Queen v. The Justices of Hertfordshire, 6 Q. B. 753, and Proctor v. Williams, 8 C. B. N. S. 386 (E. C. L. R. vol. 98). The affidavits on which the rule was obtained stated that the arbitrator claimed 10/. 11s. 2d. (exclusive of 5/. 5s. for his fee as arbitrator) as the costs of the reference and award, sending in to the Company a bill of particulars which included various charges made by Barker for attendances on him in the matter, and for acting as bis adviser at the reference and also the costs of Barker in preparing the award for him. It was sworn that these attendances by Underwood's attorney were in the absence of any professional assistance on behalf of the Company, who were merely represented by their surveyor.
Lush, Q. C., and R. E. Turner, now showed cause, upon an affidavit by the arbitrator, in which he positively denied that he had ever received any advice or assistance from or had any communication with Barker on the subject of the reference before he had fully made up his mind as to the sum he would award to Underwood.—There is nothing to justify the notion that the arbitrator has acted culpably in this matter. Some suspicion was perhaps naturally excited by the fact of the attorney's charges for aiding him in putting his award into a formal shape being mixed up with the arbitrator's charge. But it is
perfectly competent to *an arbitrator, after he has made up his mind as to what his award shall be, to employ an attorney to
put it into proper form: and it is no ground of objection that the • person so employed happens to be the attorney of one of the parties to the reference. None of the cases referred to have any material bearing upon the present. In Walker v. Frobisher, 6 Ves. 70, the arbitrator had received evidence from one of the parties, unknown to the other, after he had given notice that he would hear no more. Fetherstone v. Cooper, 9 Ves. 67, carries the matter no further. And Dobson v. Groves, 6 Q. B. 637 (E. C. L. R. vol. 51), merely decides, that, where an arbitrator questions a witness and receives statements from him in the absence and without the consent of one of the parties to the reference, the Court will set aside the award, without taking into consideration the nature of the statements or the probability of their having influenced the decision. [erle, C. J.—It would vitiate the award, no doubt, if the attorney had been taken into his counsel before the arbitrator had made up his mind. But, if the fact of prior communication is negatived, the ground of the rule fails. I very much disapprove of an arbitrator consulting the attorney of one of the parties to the reference as to the form of his award. To say the least of it, it is an extremely imprudent thing. But I am not prepared to say that it is ground for setting aside the award, if the arbitrator had previously fully made up his mind as to the substance of his award, and merely consulted the attorney upon the framing of it.] The affidavits show distinctly that the arbitrator here had made up his mind fully before he consulted Barker as to the drawing of the award.
Mellor, Q. C, and C. Pollock, in support of the rule.—The conduct of an arbitrator should be free from suspicion. It it impossible to measure the influence upon his mind of ex parte statements. In Walker v. *Frobisher, 6 Ves. 70, the affidavit of the arbitrator r*-.contained a statement, that, on the 10th February, several per- L 0 sons came into the room where the deponent and the surveyors were, unattended by the solicitors on either side, and did mention some circumstances relative to the matters in dispute, of which he believed he made some minutes, but that they were at the same time told by him that he had previously satisfied his mind on the subject, and that he should proceed to make his award. And Lord Eldon said: "It does not appear to me that the arbitrator has by the award improperly exercised the authority given by the order of reference: but, on account of the transaction that took place on the 10th of February, the award cannot stand. He had examined different witnesses at different times in the presence of the parties. He recommended them not to produce any more witnesses. To that recommendation they accede, and in effect say, 'Upon the view of what is disclosed to you, do what is right between us.' After this, he hears these other persons; and he admits he took minutes of what was said. It did not pass as mere conversation. It does not appear that he afterwards held any communication with the other party, or disclosed what passed to him: but the arbitrator swears it had no effect upon his award. I believe him. He is a most respectable man. But I cannot from respect to any man do that which I cannot reconcile to general principles. A judge must not take upon himself to say whether evidence improperly admitted had or had not an effect upon his mind. The award may have done perfect justice; but, upon general principles, it cannot