1876.

MCBRIDE

v.

BROGDEN

the judgment of the Court of Common Pleas had been overruled in Wilson v. Merry (L. R. 1 H. L. Sc. 326); but that is not so. The case in the House of Lords was decided three years after AND OTHERS. Murphy v. Smith, which does not seem to have been mentioned; and neither that case nor Feltham v. England (L. R. 2 Q. B. 33), which was cited without disapproval by Lord Chelmsford in Wilson v. Merry, is to be taken to have been overruled; and this Court is at liberty to follow them.

In Feltham v. England it was held that the foreman or manager was not, in the sense contended for, the representative of the master; but it was not said that there might not be a representative or vice-principal, for whose conduct the principal would be responsible.

Ashworth v. Stanwix (30 L. J. Q. B. 183) was a case where a master working with a servant was held liable for an injury to the servant by his negligence, and his partner, though not present, was held jointly liable. In Mellors v. Shaw (30 L. J. Q. B. 333), where the negligence was that of a person who was superintendent of a mine and one of the owners, the owners were held liable.

[JOHNSTON, J., called attention to the case of Allen v. The New Gas Co. (45 L. J. Ex. 668.)]

That was a case where a servant of the defendants brought an action against them for injury done to him by certain gates; and the evidence showed that a person named Farren, who was the manager of the Company, had had his attention called to the unsafe state of the gates, and had promised to have them seen to; but it did not appear that he had failed to do so. It did appear that some directions had been given by a blacksmith foreman to make a bar, which had not been done; and the Court held that the mischief arose from the conduct of the plaintiff's fellow-workman as such, and not from the defendant's default, nor from the default of any manager or vice-proprietor. The Court there held that Farren was not a manager or vice-proprietor. But that distinguishes the case from the present. It is submitted that here Gwynneth was a vice-principal, inasmuch as he employed and dismissed men, and had the general control of the business as to contracts and money matters.

As to the cases cited at the trial, Tunney v. The Midland Railway Co. (L. R. 1 C. P. 291) was a case in which the negligence was clearly that of a fellow-servant of the plaintiff; and so also was

1876.

V.

BROGDEN

that of Morgan v. The Vale of Neath Railway Co. (L. R. 1 Q. B. 149), though the employments of the plaintiff and the negligent MCBRIDE persons were of different kinds, one plaintiff being a carpenter, and the other a porter; and in Lavell v. Howell (45 L. J. C. P. 387), it was held that the person who caused the injury and the plaintiff were fellow-servants, although the plaintiff was not exclusively in the defendants' service.

If the principal chooses to substitute for himself a vice-principal or manager exercising a general jurisdiction and authority on behalf of his employer, he may be responsible for the acts of the vice-principal, although he was a perfectly proper person to employ.

[PRENDERGAST, C.J.-In Allen v. The New Gas Co., Huddleston, B., says, that to make the defendants liable for negligence, the plaintiff must prove, either that they undertook personally to direct the works, or that the persons employed by them were not proper or competent, or that the materials were inadequate, or the means and resources were unsuitable to accomplish the work.]

It is submitted that it was not intended in that case to lay down the doctrine that the only duty of the master is to appoint competent persons as servants.

In Wemyss v. Matheson (4 Mc.Q. 215), it was held that a master is responsible for injury to his servants caused by dangerous machinery, if proper safeguards and precautions are not used by him for protection.

The cases on the subject will be found collected in Roscoe on Evidence, 12th edit. p. 680.

That the master is responsible for want of reasonable care in the appointment of his servants, is clear from Tarrant v. Webb (18 C. B. 797). And it may be assumed that there was an implied contract by the defendants to protect their workmen against injuries by dangerous machinery and the employment of incompetent

persons.

If it be said that this case is one of an ordinary risk of workmen, the language of Bramwell, B., in Britton v. The Great Western Cotton Co. (L. R. 7 Ex. 130), is in point. That was a case where the plaintiff sought to recover damages for an injury done to the plaintiff by machinery not properly fenced off according to the provisions of a statute, and the learned Baron used these words

AND OTHERS.

1876.

MCBRIDE

V.

BROGDEN

(p. 137), "But now we come to the great difficulty in the case. Does the maxim Volenti non fit injuria apply? I think not. True, Britton (the plaintiff) was in one sense volens. He need not AND OTHERS. have gone where he did. But he must not only be a volunteer in the sense that when he went there he might have stopped away, but it must clearly appear that he went voluntarily, with a full knowledge and understanding of the risk."

In Holmes v. Worthington (2 F. & F. 533), a workman was held not to be precluded from recovering against his master for injury caused by the defective condition of machinery, although he knew of it, he having complained of it, aud continued in the use of it in the reasonable expectation of its being repaired.

As to the suggestion that the knowledge of the danger was not brought home to the defendants, it must be taken that Gwynneth's knowledge was the defendants' knowledge; and in the recent case of Tarry v. Ashton (45 L. J. Q. B. 260), the defendant was held responsible for injury done by the falling of a lamp, although he had shortly before employed a competent person to put it in repair, and was not aware at the time of the accident that it was in a dangerous condition.

It is unnecessary to consider which of the particular circumstances was the real cause of the accident. The evidence is not to be dissected for that purpose, but must be taken as a whole, as in the case of Jackson v. The Metropolitan Railway Co. (L. R. 10 C. P. 49), where it was held that the several circumstances proved, taken singly, might not have been sufficient evidence of negligence to charge the defendants, yet, combined, they showed such a careless and improper mode of conducting the business of the company, as to justify the jury in finding them guilty of negligence which was a cause of the accident.

With regard to the last branch of the rule, which asks that judgment may be entered for the defendants on the findings, it is submitted that those findings are quite sufficient to bring the case within the doctrine laid down in Murphy v. Smith. For these reasons, this rule ought to be discharged.

Travers, in support of the rule (M. Chapman was with him).— It is not proposed to argue at length the case on the second count of the declaration. The real question in the case is as to community of service. The cause of action in both counts is the same, and it is not proper in New Zealand to have different counts

for one cause of action, although several causes of action may be joined in the same declaration.

1876.

MCBRIDE

V.

BROGDEN

[PRENDERGAST, C.J.-Might not the plaintiff be entitled to recover on the second count, even although he was a servant, if AND OTHERS. negligence in the appointment of servants was the cause of the injury?

JOHNSTON, J.-Was it not competent for the plaintiff to put the facts one way for the purpose of applying one particular rule of law, and then in another way for the purpose of applying another rule of law, and thus claim damages either as a servant or as a passenger?]

The two counts are inconsistent. The first count alleges that the defendants, well knowing that the line was not safe, and that the truck was insufficiently constructed to make it safe to drive in front of the engine, required the plaintiff, who had no knowledge of those facts, to travel in the truck on the line when unfenced and obstructed. There are thus three grounds of claim in the countone being the active interference of the defendants in requiring the plaintiff to travel, and the others, their knowledge of the unsafeness of the line and the unfit construction of the carriage, and their omission to provide proper, skilful, and careful agents and servants.

The cause of action in the second count is quite different. It alleges that the defendants are railway contractors in possession of the line; that the plaintiff was lawfully in a truck on the line, and that the defendants by their servants so negligently drove the truck that the plaintiff was injured. The true doctrine as to negligence between master and servant is this: that in the absence of a special contract a master is not liable for an accident not proved to have been occasioned by his personal negligence; and such negligence may be brought home to the master either by showing that his personal interference was the cause of the accident, or that he negligently retained incompetent servants, whose incompetency was the cause of the accident. (Ormond v. Holland, El. Bl. & El. 102.) It is said that the act of a vice-principal will make the principal liable; but it would have to be shown that the act of the vice-principal was one which, if done by the principal himself, would have made him liable. The answer to issue No. 5A does not establish the allegation of that part of the third paragraph of the first count which alleges that the defendants omitted to pro

1876.

v.

vide proper, skilful, and careful servants. And the findings and MCBRIDE evidence generally show no cause of action on either count: The plea of general denial has a very extensive operation; as it is comAND OTHERS. petent for the defendants under it to give any evidence inconsistent with the truth of the material allegations in the declaration.

BROGDEN

With regard to the doctrine of responsibility to servants for the negligence of a vice-principal, the whole question has undergone investigation before a Committee of the Imperial House of Commons, with the view of considering the necessity or propriety of a change of the law, and the history of the law on the subject is detailed in the evidence given before the Committee. The law, as laid down up to this time, is fully embodied in the report of the case of Wilson v. Merry (V. 1 L. R. H. of L. Sc. 326). It was said that the question whether the person by whose negligence the injury occurred was a vice-principal or not was for the Judge, and the question of negligence for the jury; but Lord Chelmsford observed (p. 388), that if the Judge had told the jury that if Neish had the power of engaging and dismissing workmen as he pleased, and the process was entirely left to him without the direction or control of the defendants, he was a superintendent and not a fellow-workman, it would have been a misdirection. It was held there, that for the purpose of applying the law of negligence there is no distinction between workmen of different classes; and that workmen do not cease to be fellow-workmen because they are not all equal in point of station and authority.

The evidence shows that Gwynneth was, strictly speaking, a fellow-servant of the plaintiff. He had charge of one part of the line, and Smith of another. Possibly Henderson might have been a vice-principal.

As to the second count, in which the plaintiff was treated as a passenger, it having been proved that he was a servant, the defence. of community of service ariscs as well as on the first. The plaintiff being a servant, and Gwynneth and Broad also servants of the defendants, it does not matter whether the negligence which caused the injury was negligence of Gwynneth or of Broad, or of both.

Again, it appears from the evidence that an accidental obstruction on the road was really the proximate cause of the accident, and that rebuts the imputation of negligence. Carey's evidence shows that it was not merely the speed that caused the accident.