LOVELL v. HOWELL. Master and Servant-Liability of Master for Negligence of Servant-Exception as to Fellow-servant or Fellow-workman. The principle which exempts a master from liability to his servant for injury caused by the negligent act of a fellow-servant or fellow-workman, is, that the servant must be assumed to have contemplated and tacitly assented to encounter the ordinary risks incident to the service or employment, at the time of entering into the contract. : The plaintiff (who was a licensed waterman and lighterman) was in the employ at weekly wages of the defendant, a corn-merchant and warehousekeeper; his ordinary duty being to attend at the waterside of the premises every tide for about an hour and a half before and after high-water, for the purpose of bringing barges to and from the wharf and there mooring and unmooring them. It was no part of his duty to load or unload the barges or to assist in any way in the work of the warehouse but it was his habit to go to the office on the land side of the warehouse for orders, or when sent for by the defendant's manager. There were two ways of going there, viz. by landing from his boat at stairs at the end of the street next adjoining the warehouse, or by stepping from the barges into and going through the warehouse and out by a door to the street. He usually went by this latter way. Being on the barges at a time when his actual duty did not require him to be there, he was sent for to the office, and was proceeding thither by his accustomed route, when, in passing out from the warehouse door to the street, he was knocked down and injured by a sack of grain which another of the defendant's men was in a negligent manner hoisting by means of a crane from a waggon: Held, that this was an injury caused by the negligence of a fellow-workman, within the above-mentioned exception, and consequently that the master was not liable. THE declaration stated that the defendant by his servants so negligently hoisted up certain sacks from a waggon into the defendant's warehouse, that one of the sacks fell upon the plaintiff, whereby he was thrown down and hurt. Second plea. That the injury was committed by servants of the defendant, and solely by their negligence, and not by the negligence of the defendant personally, and without the authority, knowledge, sanction, or consent of the defendant; that such servants were reasonably fit and competent to be employed; that the plaintiff was also the servant of the defendant and was then acting with the first-mentioned servants in one common employment; and that the defendant was not personally guilty of any negligence. Issue thereon." 1876 Feb. 16. 1876 LOVELL V. HOWELL. The cause was tried before Lindley, J., at the sittings in London after Trinity Term, 1875. The facts were as follows:The plaintiff is a licensed waterman and lighterman. The defendant is a corn-merchant, miller, warehouseman, and wharfinger, carrying on business at Sufferance Wharf and Providence Wharf, College Street, Belvedere Road, Lambeth. He is also the owner of several barges. The plaintiff had been for about three months in the employ of the defendant when the accident complained of took place; his duty being to attend to the mooring and unmooring of the barges when they were brought to the premises to be laden or unladen, and which usually occupied him for about an hour and a half before and after each high tide, and for which he received wages of 24s. per week. About 6 o'clock in the evening of the 21st of October, 1874, when it was quite dark, the plaintiff was on the barges preparing for his night's duty, which would not commence for some hours, when he was told that the defendant's manager, Barker, wanted him at the office, which was in the street at the other side of the warehouse, and to which he was in the habit of going to receive orders. There were two ways of going to the office from the river side, viz. by passing by means of a wherry to stairs at the river end of College Street, or by stepping from the barges into a door-way and thence through the warehouse to the street; the latter being the way which the plaintiff usually adopted. In passing from the warehouse into the street on the occasion in question, the plaintiff was knocked down by a sack of peas which was being hoisted from a waggon by means of a crane to one of the upper floors of the warehouse, the rope by which the sack was being hauled up having through the carelessness of the defendant's men who were performing the work been left too slack. Upon this state of facts, it was insisted on the part of the defendant, that, inasmuch as the injury complained of was the result of carelessness on the part of persons engaged with the plaintiff in one common employment, the master was not responsible. The learned judge, yielding to the objection, directed a verdict to be entered for the defendant, with leave to the plaintiff to move to enter a verdict for him for 1507., agreed damages, if the Court should be of opinion that the objection was untenable. J. Brown, Q.C., and W. G. Harrison, shewed cause against a motion for judgment pursuant to the leave reserved. The relative position of the plaintiff with the other persons in the defendant's employ was such as to bring this case within the rule laid down by Blackburn, J., in Howells v. Landore Siemens Steel Co. (1), where that learned judge says: "It is a rule of law that the master who employs a servant (not an agent), is responsible for the negligence of that servant in matters in which he is employed: but there is this exception, which has been established by a series of decisions, that, with regard to a fellow-servant, the master is held not so responsible, because this negligence is to be taken as one of the ordinary risks which the servant contemplates and undertakes when entering his employment." Some of the more important decisions upon this subject are Wilson v. Merry (2), Bartonshill Coal Co. v. Reid (3), Waller v. South Eastern Ry. Co. (4), Morgan v. Vale of Neath Ry. Co. (5), and Tunney v. Midland Ry. Co. (6) In Bartonshill Coal Co. v. Reid (3), Lord Cranworth, after speaking of the liability of a master for an injury done to a third person by the negligence of his servant, thus proceeds (7): "But, do the same principles apply to the case of a workman injured by the want of care of a fellow-workman engaged together in the same work? I think not. When a workman contracts to do work of any particular sort, he knows, or ought to know, to what risks he is exposing himself: he knows, if such be the nature of the risk, that want of care on the part of a fellow-workman may be injurious or fatal to him, and that against such want of care his employer cannot by possibility protect him. If such want of care should occur, and evil is the result, he cannot say that he does not know whether the master or the servant was to blame. He knows that the blame was wholly that of the servant. He cannot say that the master need not have engaged in the work at all, for he was party to its being undertaken. Principle, therefore, seems to me opposed to the doctrine that the responsibility of a master for the ill consequences of his servant's carelessness is (1) Law Rep. 10 Q. B. 62. (4) 2 H. & C. 102; 32 L. J. (Ex.) 205. (5) Law Rep. 1 Q. B. 149. (6) Law Rep. 1 C. P. 291. (7) 3 Macq. at p. 284. 1876 LOVELL V. HOWELL. 1876 LOVELL v. HOWELL. applicable to the demand made by a fellow-workman in respect of evil resulting from the carelessness of a fellow-workman when engaged in a common work." He then refers to Priestley v. Fowler (1) and other cases as supporting this view. To bring a case within the exception, it is not necessary that the person doing the injury and the person receiving it should be both engaged in the same identical part of the employer's business, so as to be technically described as "fellow-workmen :" it is enough if both are acting in furtherance of the general concern carried on by the master, though in different capacities. Thus, in Waller v. South Eastern Ry. Co. (2), where injury was occasioned to the guard of a train by the negligence of the ganger of the plate-layers in keeping the permanent way in proper repair, Pollock, C.B., said (3): "The question resolves itself into this: whether the servant whose negligence caused the accident and the servant who was killed were at the time engaged in what may be called one common object. I think that the superintending the trains on their journey, and the taking care that the rails on which the carriages run are firmly and securely fastened and bolted, constitute one common object, viz. that the passengers shall be conveyed in carriages which are safe and on rails which are free from danger." [BRETT, J. Was there any community of employment in these two men, the man who received the sack of peas on his head, and the man whose negligence caused it to strike him? The plaintiff's work was confined to mooring and unmooring the barges at certain stated times. He had nothing to do with the warehouse: he did not even assist in loading or unloading the barges.] Both were engaged, though in different capacities, in the common business of their master. In Morgan v. Vale of Neath Ry. Co. (4), the plaintiff was in the employment of a railway company as a carpenter, to do any carpenter's work for the general purposes of the company. He was standing on a scaffolding at work on a shed close to the line of railway, and some porters in the service of the company carelessly shifted an engine on a turn-table so that it struck a ladder supporting the scaffold, by (1) 3 M. & W. 1. (2) 2 H. & C. 102; 32 L. J. (Ex.) 205. (3) 2 H. & C. at p. 110. which means the plaintiff was thrown down and injured: and it [ARCHIBALD, J. The principle of the exception in question seems to be this, that, in the contract of service for wages, the servant accepts all the ordinary risks incident to the service.] That is precisely the principle which is laid down by Erle, C.J., in Tunney v. Midland Ry. Co. (3): "The rule has been settled by a series of cases, beginning with Priestly v. Fowler (4) and ending with Morgan v. Vale of Neath Ry. Co. (5), that a servant, when he undertakes to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the risk of negligence upon the part of a fellow-servant when he is acting in discharge of his duty as servant of him who is the common master of both." Harris, in support of the rule. The plaintiff and the person whose negligence caused the injury complained of were not engaged in "a common employment," so as to bring this case within the exception to the general rule which makes a master responsible for the negligent acts of his servants. The evidence shewed that the duties of the two were totally unconnected with each other. The plaintiff's duties were confined to the shifting of the barges on the river side of the warehouse, and that only for a short (1) 5 B. & S. at p. 580; 33 L. J. (Q.B.) 265. (2) Law Rep. 1 Q. B. at p. 154. (3) Law Rep. 1 C. P. at p. 296. (5) Law Rep. 1 Q. B. 149. 1876 LOVELL V. HOWELL. VOL. I. N 3 |