lenborough said he had no doubt the water works company was liable, and the plaintiff had a verdict. Matthews v. West London Water Works Co. 3 Camp. 402. This decision made

at nisi prius was cited but not regarded in Overton v. Freeman, where the defendants had contracted to pave certain portions of a parish, and entered into a sub-contract with one Warren to pave the street in question. He employed labourers to work under him; and they so placed curb stones on the pathway as to obstruct it and constitute a public nuisance, in consequence of which the plaintiff fell over them and was injured. It was urged that the defendants were liable in respect of this being a public nuisance; but this ground did not prevail; the case was held to fall within the principle that the sub-contractor, and not the person with whom he contracts, is liable civilly · as well as criminally for any wrong done by himself or his servants in the execution of the work contracted for. The defendants not having personally interfered or given any direction as to the performance of the work, but merely having contracted with a third person to do it, were held not responsible for an unauthorized and unlawful act of such third person in the course of it. The original contractors might be equally liable with the sub-contractor, if they in any manner directed or countenanced the act complained of. But there was no pretence for so charging the defendants here: they had contracted with Warren to lay down the curb stones in a particular way—not to so place the stones, and so negligently leave them, as to occasion injury to the plaintiff.

The decision in Overton v. Freeman was followed in Peachey v. Rowland, 13 Com. Bench (4 J. Scott) 185, 76 Eng. Com. Law Rep. 185. Here, said Maule, J., the true result of the evidence was, that "the defendants had nothing whatever to do with the wrongful act complained of; they employed somebody to do something which might be done either in a proper or an improper manner; and he did it in a negligent and improper manner, and injury resulted to the plaintiff." So in Gayford v. Nicholls, 9 W. H. & G. 708, where the defendant entered into an agreement with a contractor that he should do certain work, and it was alleged that the workmen employed by that contractor, whilst they were on certain land by the defendant's permission, had, from want of due care, injured the plaintiff's property, or had carried away the plaintiff's materials, it was considered that no action would lie against the defendant; the acts complained of being done not by the defendant, or any person authorized by him as his servant, but by the contractor's servants.

5. Liability for employing contractor to do an illegal act.

The cases in which a contractor was employed to do a thing perfectly lawful, are very different from the case of defendants who employ contractors to do a thing illegal in itself. If a contractor shall be employed to do, and shall do, such a thing, the employer is responsible for it, as if he did it himself. Ellis v. Sheffield Gas Consumers Co. 2 El. & Black. 767, 75 Eng. Com. Law Rep. 766. In this case the defendants, notwithstanding they had no right to break up the streets at all, contracted with a firm to break up the same, and in so doing to heap up earth and stone, so as to be a public nuisance. What was thus done in pursuance of the directions of the defendants, contained in their contract, being the primary cause of the accident from which the plaintiff sustained damage, the defendants were not exempted from liability merely because of the contract.

CHAPTER LXXXI.

HOW FAR A MASTER IS LIABLE TO A SERVANT FOR AN INJURY SUSTAINED IN THE MASTER'S SERVICE.

1. Generally, one servant injured by the negligence of another servant, in the course of their common employment, cannot recover damages against the master.

When a servant employed to go with goods in a van conducted by another servant, was, by reason of the van breaking down, thrown to the ground and injured, and for this injury an action was brought against the master, it was considered that from the mere relation of master and servant no contract, and therefore no duty, could be implied on the master's part to cause the servant to be safely and securely carried, or to make the master liable for damage to the servant arising from any vice or imperfection, unknown to the master, in the carriage or in the mode of loading and conducting it. In such an employment the servant must have known as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely. To allow this sort of action to prevail would be an encouragement to the servant to omit that diligence and

caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sustain by the negligence of others engaged under the same master than any recourse against the master for damages could possibly afford. Priestley v. Fowler, 3 M. & W. 1; 4 M. & W. 6. The same principle that in the case of a servant injured by the negligence of another servant in the course of their common employment, he or his relatives are disentitled to recover damages against the master-was acted on, where it appeared that the plaintiff's husband was a workman employed by the defendant to assist in the erection of a building, and in consequence of the misconstruction of the scaffold a part of it broke and the plaintiff's husband fell to the ground and was killed. It not being suggested that the person who had erected the scaffold, or assisted in the erection of it, was a person deficient in skill, or an improper person to be employed for that purpose, there was a verdict for the defendant. Wigmore v. Jay, 5 W. H. & G. 354.

The principle of Priestley v. Fowler has been approved in the United States by courts of several of the states. Brown v. Maxwell, 6 Hill 592. It has been frequently acted on in an action against a railroad company by one of its agents. It was so acted on in South Carolina in 1841, Murray v. S. C. Railroad Co. 1 McMul. 385; in Massachusetts in 1842, Farwell v. Boston & Worcester Railroad, 4 Metcalf 49; Hayes v. Western R. Co. 3 Cush. 270; in New York in 1849, Coon v. Syracuse & Utica R. R. Co. 6 Barbour 231; and in England in 1850, Hutchinson v. Railway Co. 5 W. H. & G. 349. "The principle," says Alderson, B., "is that a servant when he engages to serve a master undertakes, as between him and his master, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of a fellow servant, whenever he is acting in discharge of his duty as servant of him who is the common master of both."

As between the company and their own servants, there is not to be cast on the jury the duty of fixing the number of servants which the company ought to have. If a servant thinks that he is in danger by reason of the want of a sufficient number of fellow servants, he should decline the service. After being engaged in the same work for several months, without making any complaint as to the inadequacy of the means employed, his case will fall within the maxim volenti non fit injuria. Skipp v. Eastern Counties Railway Co. 9 W. H. & G. 223.

2. Notwithstanding the general rule, master may be liable if he exposes his servant to unreasonable risks. Liabili ty does not exist if injury was the result of the servant's own rashness.

The general principle acted on in Hutchinson v. Railway Co. it is observed by Alderson, B., must be taken with the qualification that the master shall have taken due care not to expose his servant to unreasonable risks. 5 W. H. & G. 349. In Ohio, when a collision between trains on a railroad running in opposite directions occurred because information of a change of the place of passing was given to the conductor and engine-man of one train, and not of the other, an engine-man injured by reason of such collision, maintained an action against the railroad company. Little Miami R. Co. v. Stevens, 20 Ohio 436. "The servant," says Alderson, B., "when he engages to run the risks of his service including those arising from the negligence of fellow servants, has a right to understand that the master has taken reasonable care to protect him from such risks by associating him only with persons of ordinary skill and care." 5 W. H. & G. 349.

A master employing servants upon any work, particularly a dangerous work, is not to induce them to work under the notion that they are working with good and sufficient tackle, whilst he is guilty of negligence in employing improper tackle. A case has been put of a rope going down to a mine. "I take it," said Lord Cranworth, that "if the master of a man negligently puts a rope that is so defective that it will break with the weight of a man upon it, he is responsible. Paterson v. Wallace, 28 Eng. Law & Eq. 50. This action was upon the ground that the masters had, through their agents, carelessly left a very large stone on the roof of a mine in so dangerous a position, that the workman, when engaged in digging out the coal, owing to their negligence, lost his life. It was considered that the plaintiffs were entitled to recover if the stone was in a position in which it was dangerous owing to the master's negligence; and if the accident was the result of that negligence, and not of unjustifiable rashness.

A party who rushes into danger himself, cannot say to the defendant: that is owing to your negligence. S. C. The defendant has a right to insist that the plaintiff should not have been the heedless instrument of his own injury. Brown v. Maxwell, 6 Hill 592.

The parties who may sue and be sued, the form of action, the frame of the declaration, and the rules generally of pleading and proceeding will be found treated of in the next volume.