after his employer had left, turned the water-tap, and negligently left it so that water flowed from it into the plaintiffs' premises and damaged them. Upon the principle above stated, the Court held that the defendant was not liable. In the course of his judgment, the following observations fell from Mr. Justice Grove: "Although a definition is difficult, I should say that the act for which the master is to be held liable must be something incident to the employment for which the servant is hired, and which it is his duty to perform. All the cases tend to show, and Mitchell v. Crassweller (13 C. B. 237) and Storey v. Ashton (L. R. 4 Q. B. 476) point out clearly, that line of distinction. In one case a servant was employed to drive his master's cart, and after coming home to the stable, started off on a fresh journey for his own purposes, and during that second journey, which was not incident in any way to his employment, an accident happened. In the other case, which goes a little further, before the servant put up the cart he turned off and went in another direction, making a détour, and an accident happened. In both cases the master was held not liable. I think I should have come to the same conclusion as that I have arrived at, if there had been no express prohibition in the case, and it had merely been shown that the clerks had a lavatory where they could wash their hands. Then what possible part of the clerk's employment could it be for him to go into his master's room, to use his master's lavatory, and not only the water but probably his soap and towels, solely for his (the clerk's) own purposes? What is there in any way incident to his employment as a clerk? I see nothing. The case seems to me just the same as if

he had gone up two or three flights of stairs and washed his hands in his master's bedroom. It is a voluntary trespass on the portion of the house private to his master. I do not use the word 'trespass' in the sense of anything seriously wrong, but he had no business there at all. In doing that which his employment did not in any way authorise him to do, he negligently left his stop-cock open, and the water escaped and did damage. I think there was nothing in this within the scope of his authority, or incident to the ordinary duties of his employment."

The next branch of employers' liabilities to be considered is that which relates to the doctrine of common employment; that is, to the liability of the employer for injury to his workmen where the injury is caused by some other person in the same employment. The law hereupon has been the subject of numerous decisions. For a long time the workmen and their representatives kept up a constant agitation for an amendment of the law, which they alleged was unfair to them, as it tended to make masters careless of their safety. The result of this agitation was the Employers' Liabilities Act, 1880, which came into operation on the 1st day of January, 1881. it large and important changes were made in the law as it previously existed, and in view of its importance it is given in full in this chapter, with notes of [such cases as have been decided since it was passed and brief observations on the changes effected in the law. As, however, it is not in itself a complete code of the law of employer and workman, it is still necessary to consider the law as it stood before the passing of the Act. The first case upon the subject was that of

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Priestly v. Fowler (3 M. & W. 1), where it was decided that a master is not liable for injury caused to his servant by the negligence of a fellow-servant. This rule was extended to the case of volunteers, that is to say, persons assisting in doing the work of the employer's servants at the request of the latter, but without the request or knowledge of the employer. Where volunteers are injured by the negligence of the employer's servant in such cases, no liability attaches to the employer. See Degg v. Midland Railway Company (26 L. J. Ex. 171).

The rule in Priestly v. Fowler was subject to two qualifications: (1) Where the injury was caused by the personal interference or negligence of the master. (2) Where the master neglected to furnish proper machines, or selected incompetent servants, and injury ensued to a workman in consequence. In such cases the workman could recover (Wilson v. Merry, L. R. 1 Sc. App. 326). But where the master furnished instruments or machines which were dangerous, and the servant knew they were dangerous, and the danger was so normal that it was in the ordinary course of the employment, the servant could not recover. And that though it was the master's duty to furnish proper machinery and materials, he was not liable by the mere fact of his using machinery which was not as safe as might be used (Dynen v. Leach, 26 L. J. Ex. 221).

It was also laid down that the rule which exempts the master from liability to a servant for injury caused by the negligence of a fellow-servant applied 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 consequence 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, L. R. 1 Q. B. 149).

It was a good defence to an action against the master for negligence, that the workman had materially contributed to the injury by his own rashness (Clark v. Holmes, 30 L. J. Ex. 13).

Such is a brief sketch of the law as it stood before the passing of the recent Act.

It will be convenient here before we set out the Employers' Liability Act to make a few observations on the term negligence. It has been defined differently by different writers and judges. In the case of Smith v. L. & S. W. Ry. Co. (p. 102) the present Master of the Rolls, then Mr. Justice Brett, said: "I take the rule of law in these cases to be that which is laid down by Alderson, B., in Blyth v. Birmingham Waterworks Company (25 L. J. Ex. 213): 'Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.'"

One of the most important cases on the law of negligence is the recent case of Heaven v. Pender (10 Q. B. Div. 503). In that case the defendant, a dock-owner, supplied and put up a staging outside a ship in his dock under a contract with the ship-owner. The plaintiff was a workman in the employ of a shippainter who had contracted with the ship-owner to paint the outside of the ship, and in order to do the

painting the plaintiff went on and used the staging, when one of the ropes by which it was slung, being unfit for use when supplied by the defendant, broke, and by reason thereof plaintiff fell into the dock and was injured. The Court of Appeal held that the plaintiff was entitled to recover, and the Master of the Rolls in his judgment stated as follows:

"Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property.

"Whenever one person is by circumstances placed in such a position with regard to another, that everyone of ordinary sense who did think would at once. recognise that if he did not use ordinary care and skill in his own conduct with regard to these circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.

The Employers' Liability Act, 1880 (43 & 44 Vict. c. xlii.), provides as follows:

Sect. I.-Amendment of the law.

I. Where, after the commencement of this Act, personal injury is caused to a workman

(1) By reason of any defect in the condition of the ways, works, machinery, or plant, connected with or used in the business of the employer; or,

(2) By reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him whilst in the exercise of such superintendence; or,