1872. Feb. 27, 29.

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BRITTON v. THE GREAT WESTERN COTTON COMPANY.

Master and Servant - Machinery unfenced under 7 & 8 Vict. c. 15. s. 21Breach of Statutory Duty-Liability of Master-Contributory Negligence.

A Company for the manufacture of cotton employed a servant to grease the bearings between the fly-wheel and the spurwheel of a steam-engine in their factory. The fly-wheel revolved in a wheel race parallel to a wall and on one side of it, and the spur-wheel revolved, parallel, on the other side. The extreme distance between the two wheels was two feet ten inches, and the wall was two feet three inches thick. In a hole made in this wall the servant stood or sat while he greased the bearings. The wheel race was one which ought to have been fenced or otherwise secured within 7 & 8 Vict. c. 15. 8. 21.

The fly-wheel on the side next the wall and the edge of the wheel race on that side were not fenced. The servant having been at this work for five days, was found on the sixth lying dead on the bearings, and it was not disputed that he must have

been caught and killed by the fly-wheel. The administratrix of the deceased having brought an action, on behalf of the widow and child, against the Company for negli gence in not fencing the wheel race, as required by the statute,-Held, assuming that the deceased was not guilty of contributory negligence either in undertaking the employment or in conducting it, that the

action was maintainable.

Action under 9 & 10 Vict. c. 93, by the widow and administratrix of Samuel Britton, deceased, on behalf of herself and child.

At the trial before Brett, J., at the Bristol Summer Assizes, 1871, the following facts were proved-The defendants were cotton manufacturers, and carried on their business at Bristol in a building which was a "factory" within 7 & 8 Vict. c. 15. The deceased entered the defendants' service as a coal-trimmer on the 27th of September, 1870, being then twenty-two years old. On the 11th of October he was requested by the defendants to grease the bearings between the fly-wheel and the spur-wheel of a steam-engine in the factory. The flywheel, fifteen feet in diameter, revolved in a wheel race parallel to a wall in the engine-house, with the velocity of fiftysixteen feet in diameter, revolved parallel six revolutions a minute. The spur-wheel, to the fly-wheel, with the same velocity, in another room, and was separated from the fly-wheel by the wall. The shaft between the fly-wheel and spur-wheel passed through a hole made in this wall. In this hole, enlarged for the purpose, the deceased stood or sat on a stool while he greased the bearings. The extreme dis. tance between the two wheels, measured from spokes to spokes, was two feet ten inches, and the wall was two feet three inches thick. The wheel race in which the fly-wh el revolved was a wheel race within 7 & 8 Vict. c. 15. s. 21. The flywheel on the side furthest from the wall and the edge of the wheel race on the same side were securely fenced, but the fly-wheel on the side next the wall and the edge of the wheel race on that side were not fenced at all. There was no evidence that children or young persons

were liable to pass or be employed in the factory.

The only access to and from this hole in the wall was by crawling through the spokes of the fly-wheel while at rest. The deceased continued to perform this work for five days, and on the sixth went to work as usual, and the wheels were set in motion. When the wheels were stopped, he was found lying on the bearings dead, and it was not disputed by the defendants that he must have been caught and killed by the fly-wheel.

The second count of the declaration, as amended at the trial, was framed on a breach of the statutory duties required by 7 & 8 Vict. c. 15. s. 21 (1), and 19 & 20 Vict. c. 38. s. 4, and contained all the allegations necessary to give the plaintiff a cause of action against the defendants for their disregard of duty in employing the deceased in the factory near a steam-engine and a fly-wheel which the statutes required to be fenced, and which were not fenced, and also near a wheel race which the statutes required to be fenced close to its edge, and which was not so fenced and was not in any way secured, whereby the deceased was caught and whirled about by certain parts of the machinery and injured, and within twelve months before suit died of his injuries.

(1) 7 & 8 Vict. c. 15. s. 21, enacts with regard to cotton factories, among others, "Every fly-wheel directly connected with the steam-engine or waterwheel, or other mechanical power, whether in the engine-house or not, and every part of a steamengine and water-wheel, and every hoist or teagle near to which children or young persons are liable to pass or be employed, and all parts of the millgearing in a factory shall be securely fenced; and every wheel race not otherwise secured shall be fenced close to the edge of the wheel race; and the said protection to each part shall not be removed while the parts required to be fenced are in motion by the action of the steam-engine, waterwheel or other mechanical power for any manufacturing process."

19 & 20 Vict. c. 38. s. 3, enacts that "7 & 8 Vict. c. 15, and this Act shall be construed and executed as if they were one Act;" and section 4 enacts that section 21 of 7 & 8 Vict. c. 15, "so far as the same refers to the mill-gearing, shall apply only to those parts thereof with which children and young persons are liable to come in contact either in passing or in their ordinary occupation in the factory."

The pleas were-1. Not guilty. 2. A denial that the machinery required fencing. 3. That the deceased was more than twenty-one years old and of sound mind, and had full knowledge that the machinery was not securely fenced, and by his own negligence met with the injuries complained of. Issues thereon.

Brett, J., told the jury that the defendants were bound to fence a wheel race close to its edge or otherwise secure it, and asked the jury if, in their opinion, the deceased had been guilty of contributory negligence either in undertaking this employment or in conducting it; and directed them, if they thought he had not, and if they also thought that the place where the deceased stood was the edge of a wheel-race, they should find for the plaintiff. But if they thought either that the place was not a wheel-race, or that the deceased was guilty of contributory negligence, they should find for the defendants. That negligence was either the doing an act which a person of ordinary knowledge, skill, and care, in the position of the deceased, would not do, or the omitting to do an act which such a person would do; and that contributory negligence meant negligence without which the accident would not have happened.

The jury returned a verdict for the plaintiff for 2001., Brett, J., reserving leave to the defendants to move to enter a nonsuit or a verdict for them if upon all the facts he ought to have ruled that there was no evidence for the jury of their liability. A rule nisi accordingly was afterwards obtained on the grounds that there was no statutory duty to fence the inside edge of the wheel-race, and that the deceased voluntarily undertook the employment with a full knowledge of the risks to which it exposed him.

H. T. Cole (A. Charles with him), for the plaintiff, shewed cause, and cited Coe v. Platt (2), where Parke, B., said that the words in 7 & 8 Vict. c. 15. s. 21, near to which children or young persons," &c., qualified only the expressions 'every hoist or teagle," and Doel v. Shep

(2) 6 Exch. Rep. 757; s. c. 20 Law J. Rep. (N.S.) Exch. 164.

pard (3), Caswell v. Worth (4), Patterson v. Wallace (5), The Bartonshill Coal Company v. Reid (6), Holmes v. Clark (7), and Mellors v. Shaw (8).

Kingdon and Pinder, for the defendants, in support of the rule.-The wheel race did not require fencing on the edge next the wall, because it was "otherwise secured" within 7 & 8 Vict. c. 15. s. 21, for no one went or could go there in their ordinary business. The statute requires fencing only as to those parts where persons are employed in their ordinary and permanent occupation, but this was an extraordinary and temporary occupation. The deceased was a "volunteer;" whatever danger there was he knew it as well as the defendants, who could tell him nothing that he did not know. Holmes v. Clark (7) is distinguishable.

BRAMWELL, B.-I think the rule must be discharged, though I have had considerable doubts during the discussion. I form this judgment on Holmes v. Clark (7), which I cannot distinguish from this case, except by one fact which makes this case stronger for the plaintiff. There the plaintiff knew of the danger; here there is no evidence the deceased knew of any danger. I, therefore, act on that authority though-I say it with the utmost respect-I cannot follow the reasonings in all the judgments there, some of which seem to me to be inconsistent with the others.

But without Holmes v. Clark (7) I should come to the same conclusion. I think on the true construction of the two

Factory Acts, 7 & 8 Vict. c. 15. s. 21, and 19 & 20 Vict. c. 38. s. 4, taken together, that "every fly-wheel directly connected with the steam-engine or water-wheel or other mechanical power, whether in the engine-house or not, and every part of a steam-engine and waterwheel," must be securely fenced in all

(3) 5 E. & B. 856; s. c. 25 Law J. Rep. (N.s.) Q.B. 124.

(4) 5 E. & B. 849; s. c. 25 Law J. Rep. (N.s.) Q.B. 121.

cases whether children or young persons are employed or not, because although 19 & 20 Vict. c. 38. s. 4, limits the necessity of fencing mill gearing to cases where children and young persons are concerned, yet since the necessity of fencing the substantial part, "every wheel race" is not so limited, we cannot suppose that the legislature intended that, and yet did not intend that every fly-wheel should be fenced in all cases.

But it is not necessary to decide that, because the defendant's counsel admitted that every wheel race not otherwise secured must be fenced close to the edge of the wheel race, whether children, &c., are concerned or not. Mr. Kingdon argued that it was "otherwise secured," because it was only accessible on unusual occasions. I do not think that is so. The statute means fenced against those for whose benefit the statute was passed, those employed in the works. There was, therefore, a clear breach of the statutory duty. But now arises the question whether the plaintiff can maintain this action. We must take it that the deceased met the injury from the wheel; not that he died from a fit and was caught after death in the wheel. But then comes the great difficulty; it is said "volenti non fit injuria." It is true he was "volens," in the sense that he entered the employment voluntarily. I should not consider that he was acting under compulsion, even if he had been bound by contract to serve. But that that maxim may apply, he must be not only a volunteer but must know the nature of the risk he runs. Did the deceased know the nature of the risk? It is suggested he must have known it, at least as well as his employers. That is not necessarily so, and really I cannot see that it was a very dangerous occupation, at least not so obviously dangerous that he must have knowingly run the risk. I should imagine the accident must have happened from some misfortune; some fall, or a sudden attack of giddiness or something of that sort.

Here the plaintiff is not placed in the dilemma which arises when the action is for a breach of a duty at common law. That dilemma is this-either the danger was obvious or it was not. If obvious,

the servant must have known it as well as the employer; if it was not obvious, there was no negligence in the employer. That dilemma is not in the plaintiff's way here, for the duty is a statutory one. If the deceased dispensed with the performance of it knowing the duty and knowing the danger, I think he would be " volens," but not otherwise. Brett, J., asked the jury if the deceased was guilty of contributory negligence either in undertaking the employment or in conducting it. The jury, by their verdict, in effect say "No." How can we say that they answered incorrectly? They have found in effect that the deceased did not know of the danger, if in truth there was any.

CHANNELL, B.-This rule must be discharged. I entirely agree with Bramwell, B., in his construction of the two Factory Acts, and I think it is not enough that merely the circumference of the wheel should be fenced, but that every part of the wheel must be fenced.

I also agree with him in the distinction he drew between an action on a breach of a duty at Common Law, and one on a breach of a statutory duty. In the latter case, if the plaintiff rushed into the danger with a full knowledge of it, he could not maintain an action for negligence; but in the present case the deceased, though he was "volens" in the sense that he was at liberty to accept or reject the employment, yet he was not "volens" in the sense of being guilty of contributory negligence.

If the servant, fully aware of the

dangerous nature of the employment, were induced to accept it by a higher pay, then it is clear he would be "volens" and could not recover in an action for negligence.

It is sufficient to rest our judgment on Holmes v. Clark (7); but the present case is stronger than that, for it is not shewn to be affected by those circumstances which in Holmes v. Clark (7) were held not to disentitle the plaintiff.

I

PIGOTT, B.-I am of the same opinion. agree with my brothers in their construction of the Factory Acts.

Then the defendants being guilty of a breach of a statutory duty, did the deceased disentitle himself to his right to recover by any contributory negligence? I think not, after the finding of the jury, which concludes that question. I agree with Bramwell, B., that the danger was not obviously apparent. I might think it dangerous for myself, perhaps, but a workman might not. It is a question of degree, and the jury found that the deceased was not impru dent, and I see no reason to disagree with that finding. Rule discharged.

Attorneys-Gregory, Rowcliffes & Rawle, agents for Benson & Elletson, Bristol, for plaintiff; Merediths & Co., for defendants.

(In the Second Division of the Court.)

1872. May 6.

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SMYTH, EXECUTOR, ETC., v. NORTH.

Bankruptcy Act, 1869, s. 23-Bankrupt Assignee of Lease-Lease deemed to have been surrendered-Liability of Lessee.

A lessee of a messuage and premises for a term of years assigned the unexpired residue to one who was afterwards adjudicated bankrupt under the Act of 1869. The trustee in bankruptcy disclaimed the lease under sec. 23 of that Act:-Held, that the lessor could maintain an action on the covenants in the lease against the lessee for the rent which became due between the adjudication and the disclaimer.

Semble, per MARTIN, B., and PIGOTT, B., that the Court of Bankruptcy having made no order as to the possession of the property disclaimed, this action would be maintainable for rent due after the disclaimer; Contra, per BRAMWELL, B.

Declaration that plaintiff by deed let to defendant's testatrix a messuage and premises for twenty-one years from 25th of December, 1861, and the defendant's testatrix covenanted that she, her executors, administrators and assigns, would pay the

plaintiff the rent quarterly on the usual quarter days. Breach that after the death of the testatrix one quarter's rent became due from the defendant, as executor, to the plaintiff and was unpaid.

Equitable plea: that during the term the defendant's testatrix died, and thereupon the term became vested in the defendant as sole executor; that afterwards

the defendant, as executor, with the plaintiff's written consent, as required by the deed, assigned the messuage and premises for the residue of the term to one R.; that afterwards, and before the accruing of the plaintiff's claim, R. was adjudicated bankrupt under the Bankruptcy Act, 1869; that a trustee was duly appointed under that Act; that the term thereupon became vested in the trustee;

that the trustee afterwards and before suit, under that Act and under an order of the Court of Bankruptcy, duly disclaimed the property in the term, as being land burdened with onerous covenants; that the term was, under the Act (1),