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2. IS THE PLAINTIFF A WORKMAN"?

The plaintiff must be a "workman" within the meaning of the Act to be entitled to the benefits of it.

By section 8 of the Employers' Liability Act (k), a workman is defined as "a railway servant and any person to whom the Employers and Workmen Act, 1875, applies.'

By section 10 of the Employers and Workmen Act, 1875 (), "the expression workman' does not include a domestic or menial servant, but save as aforesaid, means any person who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour, whether under the age of twenty-one years or above that age, has entered into or works under a contract with an employer, whether the contract be made before or after the passing of this Act, be express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour."

The first thing to be noticed is that railway servants appear to be included as a whole, and as a comprehensive class, and the definition is not limited in terms to those employed in manual labour. Now the managers, clerks, station-masters, etc., of a railway company, are "railway servants," although they could not in ordinary acceptation. be called "workmen," of which the term "railway servant" is only one of the definitions. There has been no decision as to whether the words were intended to include all the persons in the service of a railway company, or only the railway workmen as ordinarily understood.

Domestic and menial servants are expressly excluded by section 10 of the Employers and Workmen Act. The general definition of a domestic servant is one who resides in the master's house. A menial servant may have a little more extended meaning, and may include servants whose duties appertain to the household, although they may not actually live in the house. A head gardener, living (k) 43 & 44 Vict. c. 42.

(7) 38 & 39 Vict. c. 90.

in a cottage situate upon his master's property, has been held to be a menial servant (m), as has also a huntsman (n).

Decisions upon this section.-There have been several decisions upon the words in the definition section (section 10) "or otherwise engaged in manual labour," and the courts have more than once held in actions under the Employers' Liability Act that the manual labour here alluded to, must be ejusdem generis with the manual labour exercised by those workmen who are by name included in the definition.

In Morgan v. London General Omnibus Co. (o), it was decided by the Court of Appeal, upholding the decision of the Divisional Court, that an omnibus conductor was not a person engaged in manual labour, and was therefore not a workman entitled to sue under the Employers' Liability Act. Lord ESHER in his judgment says, that the meaning of the words in the definition section- any person otherwise engaged in manual labour"-is, "any person engaged in the same way as all the others enumerated are engaged, although they do not go by the same names" (p).

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Following this last-mentioned decision the English Court has decided that a tramcar driver is not engaged in manual labour and not a "workman within the

(m) Nowlan v. Ablett, 2 C. M. & R. 54.

(n) Nicoll v. Greaves, 33 L. J. C. P. 259.

(0) 13 Q. B. D. 832; 53 L. J. Q. B. 352; 51 L. T. (N.S.) 213; 32 W. R. 759.

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(p) The Scotch decision of Wilson v. The Glasgow Tramways Co., Sess. Cas. 5 R. (4th series), p. 981, where a tramway conductor was held under the same definition in the Employers and Workmen Act, 1875, to be a workman" engaged in manual labour, was expressly disapproved in Morgan v. London General Omnibus Co., supra. A comparison of these two cases is interesting, as showing what widely different views may be taken by highly trained minds upon a subject itself commonplace. In the Scotch case, the Lord Justice Clerk says: "I am of opinion that the respondent was a workman in the sense of the statute. He was not other than a labourer employed to attend on the tramway cars, as much so as a runner employed to work a windlass or the gearing of a pit, or a man engaged to guide the horses of a track-boat on a canal. I am unable to draw any distinction which would not neutralize the Act altogether." And Lord ORMIDALE added: "I can entertain no doubt but that he is a workman." Lord GIFFORD declined to express any opinion on the point.

meaning of the Employers' Liability Act. See Cook v. The North Metropolitan Tramways Co. (g).

With these cases must be considered the case of Yarmouth v. France (r), where it was decided, but without any great discussion upon this point, that the plaintiff, who was a wharfinger's carman, and whose duty was not only to drive, but also to load and unload the goods transported on the trolley which it was his business to drive, was a workman within the meaning of the Employers' Liability Act (s).

It has likewise been decided in England, that ordinary shop assistants, engaged in attending upon and supplying the customers who come to the shop, although a considerable part of their work may consist of manual labour, are not "workmen" within section 10 of the Employers and Workmen Act (t). These classes of persons are, therefore, not entitled to the benefits of the Employers' Liability Act.

Following the same rule that appears to have governed the English decisions upon this question, viz., whether manual labour is the chief duty of the servant, or only a duty incidental and subsidiary to other and more important mental ones, it has been held that a servant whose duties. were to assist his employers in developing mechanical ideas, and who, as a practical mechanic, sometimes assisted by manual labour in carrying them into execution was not a "workman" engaged in manual labour (u).

(g) 18 Q. B. D. 683; 56 L. J. Q. B. 309; 56 L. T. 448; 35 W. R. 577; 3 T. L. R. 523. See also Hunt v. Great Northern Rail. Co., 60 L. J. Q. B. 216; [1892] 1 Q. B. 601.

() 19 Q. B. D. 647; 57 L. J. Q. B. 7.

(s) It was decided in King v. The London Improved Cab Co., 58 L. J. Q. B. 456; 23 Q. B. D. 281, that a cabman licensed under the Metropolitan Hackney Carriages Act (6 & 7 Vict. c. 86), is not the servant of the cab proprietor, and, although the proprietor is liable for his negligence, he could not, probably, sue such proprietor under the Employers' Liability Act. See Fowler v. Lock, L. R. 7 C. P. 272; Keen v. Henry, [1894] 1 Q. B. 292; Gates v. Bill & Son, [1902] 2 K. B. 38, and observations of WILLIAMS and ROMER, L.JJ., in this last case as to real relationship between cab proprietor and cab-driver.

(t) Bound v. Lawrence, 60 L. J. M. C. 137: a grocer's assistant is not a "workman within the Employers' and Workmen Act, 1875, s. 10, neither is a hairdresser (R. v. Justices of County Louth, [1900] 2 I. R. 714. (u) Jackson v. Hill & Co., 13 Q. B. D. 618.

In a case of Leech v. Gartside (a), the question arose whether a superintendent overlooker for whose negligent superintendence the employer would be liable under the Employers' Liability Act, half of whose time was occupied in superintendence and half in manual labour, was himself a "workman" and entitled to the benefits of the Act. It was decided that he was.

The term "labourer" has been held to include a man who contracted to dig a well for cattle at so much per foot (y).

Under the term "servant in husbandry" has been included a waggoner (~), but a man employed to keep the accounts of a farm and look after the men, sometimes working with them, is not within the definition (a).

A journeyman is, strictly speaking, a man who works by the day (), but the expression is often used in contradistinction to the master man exercising the same trade. "Artificer" and "handicraftsman" have been described as workmen engaged in work requiring skill.

The term "workman," in the definition section (s. 10), does not include the workmen of the Crown, or seamen.

The workmen of the Crown, in which term are included. the workmen of the various government departments, are excluded upon the principle that the Crown is not responsible for torts committed by its servants (e).

Seamen outside the Employers' Liability Act. Seamen become deprived of the benefit of the Act in a somewhat roundabout way. They are expressly excluded from the definition "workman" in the Employers and Workmen Act, 1875, by section 13 of that Act, which says: "This Act shall not apply to seamen or to apprentices to

(a) 1 T. L. R. 391.

(y) Lowther v. Earl of Radnor, 8 East, 113.

(2) Lilley v. Elwin, 11 Q. B. 742.

(a) Davis v. Lord Berwick, 3 E. & E. 549,

(b) See DAY, J., in Morgan v. London General Omnibus Co., ante, p. 45. (c) Johnson v. Sutton, 1 T. R. 493; Baron v. Denman, 2 Exch. 167. The Corporation of the Trinity House is not a government department. See Gilbert v. The Corporation of the Trinity House, 17 Q. B. D. 795 ; 56 L. J. Q. B. 85.

the sea service." By a subsequent Act (d) this section of the Employers and Workmen Act, 1875, is repealed so far as it operates to exclude seamen and sea apprentices from the said Employers and Workmen Act, but the section goes on to add that "such repeal shall not, in the absence of any enactment to the contrary, extend to or affect any provision contained in any other Act of Parliament passed, or to be passed, whereby workman is defined by reference. to the persons to whom the Employers and Workmen Act, 1875, applies."

By the Interpretation Act, 1889 (e), words in an Act of Parliament designating the masculine gender shall include females, unless a contrary intention appears. Female workers of the classes we have enumerated are, therefore, within and entitled to the benefit of the Employers' Liability Act, 1880.

Does a volunteer become a workman?-As a corollary to the main query now under consideration, viz., as to whether the plaintiff is a workman, arises this further question: Would a volunteer, who has given his assistance to workmen without the employer's knowledge, be able to recover against the employer if injured under such circumstances as, but for his being a volunteer, would have given him a cause of action under the Act?

We have before stated (f), that before the passing of the Act a volunteer became a fellow-servant with those workmen whom he assisted, and if he received injury at their hands could not recover against their employer.

Although a person who, so far as the employer is concerned, unsolicited intrudes himself into the employment, by so doing subjects himself to the disadvantages which the regularly-engaged workmen labour under, it does not at all follow that he must participate in their advantages also.

That a master should have liability thrust upon him to make compensation to persons who do his work without

(d) 43 & 44 Vict. c. 16, s. 11.

(e) 52 & 53 Vict. c. 63, s. 1.

(ƒ) Ante, pp. 20-22.