bottom of the shaft. The defendant Walker was clearly guilty of negligence; but it was not shewn that Stanwix, who was absent at the time of the accident, knew that the tramplate was loose. The jury found a verdict for the plaintiff as against Walker, and by the direction of the learned Judge a verdict for the defendant Stanwia; leave being reserved to the plaintiff to move to enter a verdict against both defendants. Manisty had obtained a rule calling on the defendant Stanwix to shew cause why a verdict should not be entered for the plaintiff against both the defendants, on the ground that there was evidence to go to the jury upon which they might reasonably have found a verdict for the plaintiff against Stanwix, as well as against Walker. Overend shewed cause (a). This is quite a new case; that of a servant suing his masters in respect of an injury caused by the negligence of one of the masters while acting as a servant in working with the plaintiff. In principle, however, the well settled rule applies that a master is not responsible to a servant for injury caused to him by the negligence of a fellow servant in the course of the common employment. For the purposes of the case the defendant Walker, through whose negligence whilst acting in the capacity of banksman at the pit the accident happened, may be regarded as a fellow servant of the plaintiff; and the other defendant, Stanwix, as the (a) Friday, June 15th, 1860. Before Cockburn C. J., Wightman J. (who was present during part only of the argument), Crompton and Blackburn Js. 1861. ASHWORTH V. STANWIX. 1861. ASHWORTH V. master of them both. The plaintiff must be taken to have run the risk, in entering the service, of injury STANWIX. happening to him from the negligence of Walker, whom he must have known to be a person with whom he would have to work. [Cockburn C. J. Can a servant be supposed to contemplate the peculiar risk of an injury caused by the negligence of his master while acting as a fellow servant?] Roberts v. Smith (a) shews that personal interference and negligence on the part of a master gives a servant, injured in consequence, a right of action ; and in that view Walker may be personally liable as master. His negligence, however, was not such negligence, quâ master, as to affect his co-partner Stanwix with liability. A master who does not personally interfere is not liable, if he employs competent servants and provides competent machinery for the work; Bartonshill Coal Company v. Reid (b). [Blackburn J. That was a Scotch appeal; and in Scotland there has been great resistance to the establishment of the rule on this subject, as now settled in England.] In Southcote v. Stanley (c) it was held that the defendant, an hotel keeper, was not liable to the plaintiff, who was visiting him, by his request, at the hotel, for an injury sustained by the plaintiff through the falling of a piece of glass upon him from a door which it was necessary to open for the purpose of leaving the hotel, and which was in an insecure condition. The principle of that case is in favour of the defendant Stanwix; and Skipp v. Eastern Counties Railway Company (d) and Wiggett v. Fox (e) are further authorities in point. (a) 2 H. & N. 213. (c) 1 H. & N. 247. (b) 3 McQ. Sc. App. Ca. 266. (e) 11 Exch. 832. (WIGHTMAN J. here left the Court.) Manisty and Davison, contrà. Even if Walker is to be regarded as the servant of Stanwix, he was not the less, in conjunction with Stanwix, the plaintiff's master; and the cases shew that, although a master is not liable to a servant for an injury caused to him by the negligence of a fellow servant, he is liable if he himself interferes personally, and is guilty of negligence conducing to the injury. In the present case, Walker, by his personal negligence, caused the injury to the plaintiff; and Walker's negligence is in law the negligence of Stanwix also. But, further, in Paterson v. Wallace and Company (a) Lord Cranworth C. says: "When a master employs a servant in a work of a dangerous character, he is bound to take all reasonable precautions for the safety of that workman. This is the law of England no less than the law of Scotland. It is the master's duty to be careful that his servant is not induced to work under a notion that tackle or machinery is staunch and secure when in fact the master knows, or ought to know, that it is not so. And if from any negligence in this respect damage arise, the master is responsible." Brydon v. Stewart (b) is to the same effect, and shews that a master who lets a workman down his mine is bound to bring him up safely, even though he come up on his own business, and not on that of his master. In Bartonshill Coal Company v. Reid (c) Lord Cranworth C. laid down the same principle, as follows: "When a master employs his servant in a work of danger he is bound to exercise due care in order to have his tackle (a) 1 McQ. Sc. App. Ca. 748. 751. (b) 2 McQ. Sc. App. Ca. 30. (e) 3 McQ. Sc. App. Ca. 266. 288. 1861. ASHWORTH V. STANWIX. 1861. ASHWORTH V. STANWIX. and machinery in a safe and proper condition, so as to protect the servant against unnecessary risks." And in Bartonshill Coal Company v. McGuire (a) Lord Chelmsford expressed his entire concurrence in Lord Cranworth's opinion. Both Walker and Stanwix, therefore, were bound to protect the plaintiff from unnecessary risks, the service being dangerous. Stanwix delegated this duty to Walker, and Walker, as the evidence shews, grossly neglected it in not taking measures to secure the tramplate which injured the plaintiff, though Walker knew that it was loose. That the negligence of one of several partners while acting for the rest in the partnership business is in law the negligence of all, is shewn by Moreton v. Hordern (b), where all the proprietors of a stage coach were held responsible for an injury caused to the plaintiff by the negligence of one of them while driving the coach. In the last place, there was no evidence whatever to support the contention on the other side, that Walker was a fellow servant with the plaintiff. Cur. adv. vult. CROMPTON J. now delivered the judgment of the Court. The question to be determined in this case is, whether the defendant Stanwix, being co-proprietor with the other defendant, Walker, of a mine, is jointly liable with him for an injury sustained by the plaintiff, a workman in their common employ, through the negligence of the defendant Walker. The facts are such that, if the defendant Walker had been simply the fellow workman of the plaintiff, the case would have come within the (a) 3 McQ. Sc. App. Ca. 300. 303. (b) 4 B. & C. 223. principle that a servant sustaining an injury from the negligence of a fellow servant engaged in the same employment, cannot recover against the common master. The present case would then have been quite analogous to that of Bartonshill Coal Company v. Reid (a). But the present case is distinguishable from the class of cases which have been referred to, in the important particular that the defendant Walker, although in fact engaged jointly with the plaintiff in the work of the mine, was also a co-proprietor, and, as such, one of the plaintiff's masters; and the question is, whether this circumstance takes the case out of the before mentioned rule, and calls for the application of a different principle. We are of opinion that it does, and that the plaintiff is entitled to hold the defendant Stanwix responsible for the negligence of his co-proprietor and partner. The doctrine that a servant, on entering the service of an employer, takes on himself, as a risk incidental to the service, the chance of injury arising from the negligence of fellow servants engaged in the common employment, has no application in the case of the negligence of an employer. Though the chance of injury from the negligence of fellow servants may be supposed to enter into the calculation of a servant in undertaking the service, it would be too much to say that the risk of danger from the negligence of a master, when engaged with him in their common work, enters in like manner into his speculation. From a master he is entitled to expect the care and attention which the superior position and presumable sense of duty of the latter ought to command. The relation of master and servant does not the less (a) 3 McQ. Sc. App. Ca. 266. 1861. ASHWORTH V. STANWIX. |