same master, and an injury resulting to one of them from the negligence of another. In such a case the master is not in general responsible. Thus, if A. and B. are employed to drive cattle, and they injure a stranger through unskilfulness, the master is responsible. If one driver injured the other while engaged in the same service, he who was injured would have no action against their master. They were engaged in a common service, the duties of which imposed 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-servant, and not of his master." And in another action, brought against the chief contractor of the erection of the Crystal Palace, who employed a sub-contractor for earthwork, and the deceased and others were employed by the defendants to work under their subcontractor; while the deceased was engaged at the foot of the tower, a workman of the defendants at the top let fall an instrument which killed the deceased. It was held that the chief contractor was not liable, because both servants were doing the common work of the contractors; and the sub-contractor and all his servants must be considered as being the servants of the defendants. And it has also been laid down that the rule which exempts the master from liability to a servant for injury caused by the negligence of a fellow-servant applies to cases where, though the immediate object on which the one servant is employed is very dissimilar from that on which the other is employed, yet the risk of injury from the negligence of the one is so much a natural and necessary conse

quence of the employment which the other accepted, that it must be included in the risks which have to be considered in his wages. Morgan v. Vale of Neath Railway Company (1 Law Rep. Q. B. 149).

The case of Griffiths v. Giddow (31 Law Times) relates to the same point, and is to the same effect. The plaintiff was employed in sinking a coal-pit for the defendant. Something occurred at the top of the pit, (where his fellow-workmen had to empty a tub of water sent from the bottom by the plaintiff and others,) owing to which the tub fell down the pit and injured the plaintiff. There was a defect in the tackle, but the plaintiff was aware of it. An apparatus called a giddy had also been supplied by the defendant to protect the pit's mouth when the tub was emptied. But though this was used when coal was drawn up, it was neglected when water only was brought to the top. Under these circumstances, the Court of Exchequer held the defendant was not responsible. The plaintiff's fellow-workmen neglected to use the giddy. It had been supplied by the defendant, and there was no evidence to show that he had given any orders to discontinue the use of it.

If a work is done under the immediate control and superintendence of a sub-contractor, then he is the person responsible for any wrong done by the workmen he employs. But if the contractor personally interferes and gives directions to his sub-contractor, or the workmen the latter employs, then such contractor would be responsible for the orders he gives.

By the statute 9 & 10 Vict. c. 93, it is enacted that whenever the death of a person shall be caused by

any wrongful act, neglect, or default, which, if death had not ensued, would have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, although the death shall have been caused under such circumstances as amount in law to felony. And (by sect. 2) that every such action shall be for the benefit of the wife, husband, parent, and child of the deceased person, and shall be brought by and in the name of his executor or administrator, and the damages recovered, after deducting certain costs, shall be divided amongst the before-mentioned relatives, in such shares as the jury, by their verdict, shall find and direct. But not more than one action shall (by sect. 3) be in respect of the same subject matter of complaint, and the action must be commenced within twelve calendar months after the death of the deceased person. And (by sect. 4) the plaintiff must deliver, together with the declaration of his cause of action, a full particular of the persons on whose behalf the action is brought, and of the nature of the claim.

CHAP. XVII.

MANSLAUGHTER.

INASMUCH as charges of manslaughter arising out of the deaths of persons employed in collieries occur from time to time, this work would be incomplete without a brief notice of the leading rules and cases of the criminal law upon this subject. Whoever wrongfully, but without malice aforethought, kills any other person is guilty of manslaughter. This head of crime includes deaths caused voluntarily, but under extenuating circumstances, as well as deaths caused involuntarily but not merely by misadventure. It is to this latter class of deaths alone that this section will be confined. The general rule is that where death results from want of due caution on the part of a person, either in doing an act, or, secondly, from his neglecting to perform a duty which is cast upon a person by the law, such person is guilty of manslaughter. The first branch of this rule applies, for instance, to a case where stones are thrown from a height into the street, without the intention of striking any person, but also without reasonable care, and the second branch applies to a case where a pointsman in charge of railway points omits to do his duty and thereby causes the death of a

passenger in a train. (See 1 East's Pleas of the Crown, 265.) Of late years the law of manslaughter, as connected with alleged negligence of duty or want of due care, has been on several occasions defined by judges in cases of railway accidents. This class of cases resemble in many features the cases of alleged negligence, &c., in collieries. In the well-known case of the accident at Shrivenham the prisoner was a servant on the Great Western Railway, and was charged with so negligently placing a truck on the line that a collision took place, and the death of the deceased ensued. In summing up, Lord Cranworth said :-"There is no question more difficult to deal with than charges of manslaughter arising from want of due care. When a person is in a public situation, having certain duties to perform, and especially when on their performance or non-performance depend the safety or insecurity of other people, then the public have a right to expect a greater degree of caution than under other circumstances would be required. A great deal had been said as to duties more than the parties were equal to perform being cast upon them by the managers of the railway, but with that the jury had nothing to do. The question they had to determine was, whether, there being that establishment, and the prisoner being on it, he was guilty of culpable negligence, the result of which was this accident?”

In the case of R. v. Haines (2 Car. & Kir. 368), it was the duty of the defendant, as ground bailiff of a mine, to cause the mine to be properly ventilated, by causing air-headings to be put up where necessary. If by reason of his omission in this respect another be