have been made on questions of this nature. A distinction seems, however, to have been taken between the case of a person who enters and uses the owner's premises by the owner's express invitation, or as a customer, who, as one of the public, is induced by the owner to come to his premises for the purposes of business carried on by the owner there, on the one side; and, on the other, the case of a mere visitor or guest, invited or uninvited, or of a person who has a mere license to go upon the premises of the owner. The first class of cases comprises those of Corby v. Hill, 4 C. B. N. s. 556, 27 L. J. C. P. 318, and Chapman v. Rothwell, E., B. & E. 168, 27 L. J. Q. B. 315, to which may be added Gallagher v. Humphrey, 6 L. T. N. s. 684. In the second we find Southcote v. Stanley, 1 H. & N. 247, 25 L. J. Ex. 339; Hounsell v. Smyth, 7 C. B. N. s. 731, 29 L. J. C. P. 203; Bolch v. Smith, 7 H. & N. 736, 31 L. J. Ex. 201; and Wilkinson v. Fairrie, 1 H. & C. 633, 32 L. J. Ex. 73.” And towards the close of his judgment his Lordship says: "This may, I think, be safely laid down as established by the second class of decisions to which I have referred, that a mere license given by the owner to enter and use the premises, which the licensee has full opportunity of inspecting, which contain no concealed cause of mischief, and in which any existing source of danger is apparent, creates no such obligation (that is, to guard the licensee against danger) in the owner." [MONTAGUE SMITH, J. The duty is to be implied from the facts.] No duty was implied from the facts which existed in Wilkinson v. Fairrie, 1 H. & C. 633, 32 L. J. Ex. 73, and which were quite as strong as the facts here. "As there was no contract," says the Chief Baron, "or any public or private duty on the part of the defendants, that their premises should be in a different condition from that in which they were, it seems to us that the nonsuit was perfectly right." [WILLES, J. This is more like Toomey v. London and Brighton Railway Company, 3 C. B. N. s. 146, 27 L. J. C. P. 39, where the plaintiff was injured by falling down some steps at a railway station, through a door which he had opened by mistake; and the court held that there was no evidence of negligence to go to the jury.] In Boleh v. Smith, 7 H. & N. 736, 31 L. J. Ex. 201, it was held that there was no duty cast by law on a government contractor to fence a shaft crossing a path in a dockyard, the want of fencing being apparent. Martin, B., there

says: "It is true the plaintiff had permission to use the path. Permission involves leave and license, but it gives no right. If I avail myself of permission to cross a man's land, I do so by virtue of a license, not of a right. It is an abuse of language to call it a right it is an excuse or license; so that the party cannot be treated as a trespasser." [MONTAGUE SMITH, J. Wilde, B., says: "The danger was open and visible; there was nothing which could be called a trap." Besides, the plaintiff was a workman employed upon the premises.] The utmost that can be said. here is that the plaintiff was upon the premises by the same sort of tacit permission as that spoken of by Williams, J., in Hounsell v. Smyth, 7 C. B. N. s. 731, 744, 29 L. J. C. P. 203. He was there in the course of doing something for the satisfaction of his employer, Duckham, not on any work for the benefit of the defendant. Or, if he can be said to have been doing work for the defendant, in what does his position differ from that of the supernumerary employed at the theatre, in Seymour v. Maddox, 16 Q. B. 326, 20 L. J. Q. B. 327? Erle, J., in that case, says: "A person must make his own choice whether he will accept employment on premises in this condition;" that is, with an unfenced hole in the floor; "and, if he do accept such employment, he must also make his own choice whether he will pass along the floor in the dark or carry a light. If he sustain injury in consequence of the premises not being lighted, he has no right of action against the master, who has not contracted that the floor shall be lighted." The decision in Farrant v. Barnes, 11 C. B. N. s. 553, 31 L. J. C. P. 137, rests upon this ground, that it is the duty of one who sends a dangerous article by a carrier to inform him of the danger, in order that he may, by using more than ordinary care, avoid it. Willes, J., refers to the shipment, without due notice, of articles liable to spontaneous combustion ; a doctrine dealt with in Williams v. The East India Company, 3 East, 92, and in Brass v. Maitland, 6 E. & B. 470, 26 L. J. Q. B. 49. But how can that principle apply here? Clarke v. Holmes, 7 H. & N. 937, 31 L. J. Ex. 356, was the case of unfenced machinery; and there there was abundant evidence of wilful neglect on the part of the defendant. [KEATING, J. The judgment of the Exchequer Chamber in that case proceeded upon the statutes 7 & 8 Vict. c. 15, and 19 & 20 Vict. c. 38, though two of the judges thought the defendant would have been liable by common law.] There

was no misfeasance here on the part of the defendant. The plaintiff was warned of the dangerous character of the premises, or rather of the necessity for great caution in moving about them, before he went there; and a person was sent with a light to show him where to go. It was his own misfortune that he deviated from the safe path. He knew the general nature of the premises, and that more than ordinary care and caution were necessary. Cur, adv. vult.

Feb. 26. The judgment of the court (ERLE, C. J., WILLES, KEATING, and MONTAGUE SMITH, JJ.) was delivered by

WILLES, J. This was an action to recover damages for hurt sustained by the plaintiff's falling down a shaft at the defendant's place of business, through the actionable negligence, as it was alleged, of the defendant and his servants.

At the trial before the Lord Chief Justice at the sittings here after Michaelmas Term, the plaintiff had a verdict for £400 damages, subject to leave reserved.

A rule was obtained by the defendant in last term to enter a nonsuit, or to arrest the judgment, or for a new trial because of the verdict being against the evidence.

The rule was argued during the last term, before Erle, C. J., Keating, and Montague Smith, JJ., and myself, when we took time to consider. We are now of opinion that the rule ought to be discharged.

It appears that the defendant was a sugar-refiner, at whose place of business there was a shaft four feet three inches square, and twenty-nine feet three inches deep, used for moving sugar. The shaft was necessary, usual, and proper in the way of the defendant's business. Whilst it was in use, it was necessary and proper that it should be open and unfenced. When it was not in use, it was sometimes necessary, with reference to ventilation, that it should be open. It was not necessary that it should, when not in use, be unfenced; and it might then, without injury to the business, have been fenced by a rail. Whether it was usual to fence similar shafts when not in use, did not distinctly appear; nor is it very material, because such protection was unquestionably proper, in the sense of reasonable, with reference to the safety of persons having a right to move about upon the floor where the shaft in fact was, because in its nature it formed a pitfall there. At the time of the accident it was not in use; and it was open and unfenced.

The plaintiff was a journeyman gas-fitter in the employ of a patentee who had supplied the defendant with his patent gasregulator, to be paid for upon the terms that it effected a certain saving; and, for the purpose of ascertaining whether such saving had been effected, the plaintiff's employer required to test the action of the regulator. He accordingly sent the plaintiff to the defendant's place of business for that purpose; and, whilst the plaintiff was engaged upon the floor where the shaft was, he (under circumstances as to which the evidence was conflicting, but) accidentally, and, as the jury found, without any fault or negligence on his part, fell down the shaft, and was seriously hurt.

It was argued that, as the defendant had objected to the plaintiff's working at the place upon a former occasion, he (the plaintiff) could not be considered as having been in the place with the defendant's leave at the time of the accident; but the evidence did not establish a peremptory or absolute objection to the plaintiff's being employed, so as to make the sending of him upon the occasion of the accident any more against the defendant's will than the sending of any other workman; and the employment, and the implied authority resulting therefrom to test the apparatus, were not of a character involving personal preference (dilectus persona), so as to make it necessary that the patentee should himself attend. It was not suggested that the work was not journeyman's work.

It was also argued that the plaintiff was at best in the condition of a bare licensee or guest who, it was urged, is only entitled to use the place as he finds it, and whose complaint may be said to wear the color of ingratitude, so long as there is no design to injure him. See Hounsell v. Smyth, 7 C. B. N. s. 731, 29 L. J. C. P. 203.

We think this argument fails, because the capacity in which the plaintiff was there was that of a person on lawful business, in the course of fulfilling a contract in which both the plaintiff and the defendant had an interest, and not upon bare permission. No sound distinction was suggested between the case of the servant and the case of the employer, if the latter had thought proper to go in person; nor between the case of a person engaged in doing the work for the defendant pursuant to his employment and that of a person testing the work which he had stipulated with the

defendant to be paid for if it stood the test, whereby impliedly the workman was to be allowed an onstand to apply that test, and a reasonable opportunity of doing so. Any duty to enable the workman to do the work in safety seems equally to exist during the accessary employment of testing: and any duty to provide for the safety of the master workman seems equally owing to the servant workman whom he may lawfully send in his place. It is observable that, in the case of Southcote v. Stanley, 1 H. & N. 247, 25 L. J. Ex. 339, upon which much reliance was properly placed for the defendant, Alderson, B., drew the distinction between a bare licensee and a person coming on business, and Bramwell, B., between active negligence in respect of unusual danger known to the host and not to the guest, and a bare defect of construction or repair, which the host was only negligent in not finding out or anticipating the consequence of. There is considerable resemblance, though not a strict analogy, between this class of cases and those founded upon the rule as to voluntary loans and gifts, that there is no remedy against the lender or giver, for damage sustained from the loan or gift, except in case of unusual danger known to and concealed by the lender or giver. Macarthy v. Younge, 6 H. & N. 329, 30 L. J. Ex. 227. The case of the carboy of vitriol, Farrant v. Barnes, 11 C. B. N. s. 553, 31 L. J. C. P. 237, was one in which this court held answerable the bailor of an unusually dangerous chattel, the quality of which he knew, but he did not tell the bailee, who did not know it, and who, as a proximate consequence of his not knowing, and without any fault on his part, suffered damage.

The cases referred to as to the liability for accidents to servants and persons employed in other capacities in a business or profession which necessarily and obviously exposes them to danger, as in Seymour v. Maddox, 16 Q. B. 326, 20 L. J. Q. B. 327, also have their special reasons. The servant or other person so employed is supposed to undertake not only all the ordinary risks of the employment into which he enters, but also all extraordinary risks which he knows of and thinks proper to incur, including those caused by the misconduct of his fellow-servants, not, however, including those which can be traced to mere breach of duty on the part of the master. In the case of a statutory duty to fence, even the knowledge and reluctant submission of the servant who has sustained an injury are held to be only elements in