43 & 44 Vict. c. 42, s. 1 (3). s. 1 (4). the words either require or will admit of. That is all I lay down as regards the construction of the section, beyond this: that I do not think it essential to show that the conformity to the order was what has been called the causa causans of the injury. The negligence must be proved, and if you prove the negligence, then it is sufficient if, in addition to proving that, you also prove that the injury resulted, not from the negligence alone, but from the negligence and the conformity to the order." Lord Herschell (o). The plaintiff was a workman in the employ of a firm of builders who were engaged in building a house. The defendants contracted with the builders to construct a lift in the house, and set D., one of their workmen, to do the work. D. applied to the builders' foreman to lend him a man to assist him, and the foreman selected the plaintiff for that purpose. While the plaintiff was so assisting D., D. told him to put a plank across the well of the lift and stand on it, and while he was standing on it D. negligently started the lift, and the plaintiff in consequence sustained injury. Held, that the injury was the result of the plaintiff's conforming to the order of D. (o). The plaintiff was employed by the defendant to stow bales of wool in the hold of a ship. The defendant usually superintended the loading of the vessel, but B. was superintending at the time of the accident, during the temporary absence of the defendant. The workmen were divided into gangs, and B. was the foreman of the plaintiff's gang. B. was himself a labourer, working on deck, and he gave the signal to the men below when the bales were dropped down the hatchway into the hold. The plaintiff, who was below, was injured by a bale, which was dropped without sufficient warning by B. Held, that there was no evidence that the injury resulted from the plaintiff having conformed to B.'s orders, assuming that he was bound to do so (p). See also Wright v. Wallis, ante, p. 52. (4) By reason of the act or omission of any person in the service of the employer, done or made in obedience to the rules (1) or bye-laws (1) of the employer, or in obedience to particular instructions (1) (0) Wild v. Waygood, [1892] 1 Q. B. 783; 61 L. J., Q. B. 391. (p) 1888, Kellard v. Rooke, 21 Q. B. Div. 367; 57 L. J., Q. B. given by any person delegated with the authority of the employer in that behalf; or (1) Subject to sect. 2 (2). This act or omission . . . done or made in obedience The plaintiff was employed by the defendant, the owner of a saw-mill, containing saws driven by steam power, and on a certain day he was told by the defendant's foreman to cut some wood in specified lengths with the circular saw. work was generally performed by two men, one "feeding the saw and the other taking the wood out from it. A. was engaged by the defendant to attend to the engine and boiler, and to assist generally in the saw mill, and was also told "not to neglect the engine." At the time in question the plaintiff was at one end of the saw frame pushing the wood through it, and A. was at the other end receiving the wood coming out from the saw. Hearing steam blowing off, A. suddenly, and without notice to the plaintiff, let go the wood and ran to the engine-room, whereupon the wood, becoming unsteady, shook the plaintiff's hand against the saw, which cut and injured his fingers. Held, that there was no evidence that the act or omission of A. was made or done in obedience to a rule or bye-law of the employer. Per Fry, L. J. There are four questions to be answered in the affirmative before the plaintiff can succeed 1. Was there personal injury caused to the plaintiff ? 3. Was the act or omission done or made in obedience 4. Whether the injury resulted from some impropriety or defect in the rules, bye-laws, or instructions. There was evidence on the 1st, 2nd, and 4th heads, but none on the 3rd (9). with the authority of the delegated with the authority of the employer. The Delegated words" delegated with the authority of the employer" refer to a manager or a person in the position of a manager, who was put into the position of his employer to do or to abstain from doing what the employer would do or abstain from doing (r). (g) 1890, Whatley v. Holloway, 62 L. T. (N. S.) 639. employer. 43 & 44 Vict. c. 42, s. 1 (5). Person.. who has the charge or control. (5) By reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine, or train upon a railway. 66 person. . . who has the charge or control. H., who was in the employ of a railway company as a capstan man," without giving the usual warning, propelled a series of trucks along a line of rails in a goods station, and injured the plaintiff. The capstan was set in motion by hydraulic power communicated to it by H. from a stationary engine at a distance. Held, there was evidence for the jury that H. had the charge or control of a train (s). F. was a workman employed in the signal department of the defendants' railway to clean, oil, and adjust the points and wires of the locking apparatus and to do slight repairs. He was subject to the orders of an inspector who was responsible for the points and locking gear, which were moved and worked by men in the signal boxes, being kept in proper condition. F., having taken the cover off some points and locking gear to oil them, negligently left it projecting over the metals of the line whereby injury was caused to a fellow workman. Held, that there was no evidence that F. had charge or control" of the points (†). 66 A "person who has the charge or control of a train" does not necessarily cease to have charge of it, within the meaning of the Act, because some of the carriages are uncoupled from one another and from the engine, in order that they may be separately dealt with. And these words do not necessarily point only to one person who is in charge of the whole train, but may include persons who have duties to perform in respect of parts of the train (u). An engine-driver, employed with his fireman in the discharge of loaded waggons on a railway, took a locomotive engine and several waggons to a point on an incline, and there proceeded with the engine and one of the waggons to the place of discharge, intending to return for the other waggons in due course. The fireman uncoupled the remaining waggons, and scotched them to prevent their running down the incline. One of the waggons broke away, ran down the incline, and killed a workman in the service of the same employers. There was evidence that the method of scotching adopted was unsafe, and was known to and approved (s) 1882, Cox v. G. W. R., 9 Q. B. D. 106. (t) 1884, Gibbs v. G. W. R., 12 Q. B. Div. 208; 53 L. J., Q. B. 543. (u) McOrd v. Cammell, [1896] A. C. 57; 65 L. J., Q. B. 202. by the engine-driver. Held, that there was evidence for the jury that the death was caused by reason of the negligence of a person who had the charge or control of a train within the meaning of the Act, since either the engine-driver had the charge or control, or the fireman had, and there was evidence of negligence in both (v). - - locomotive engine. A steam crane fixed on a trolly, and propelled by steam along a set of rails when it is desired to move it, is not a "locomotive engine" (w). 43 & 44 Vict. c. 42, s. 1 (5). Locomo tive engine. train. Mathew, J., has said that a train was a train, Train. whether consisting of trucks laden with goods or of carriages filled with passengers, and that a locomotive engine was not essential to the making of a train (x); and Lord Halsbury, L. C., has said that "a train" includes a locomotive engine by itself, or anything that is drawn along a railway, or is in course of being drawn along a railway by that locomotive engine (w). -railway. The meaning of the term "railway" is not Railway. confined to railways belonging to railway companies, but extends to a temporary railway laid down by a contractor for the purposes of the construction of works. And Baron Huddleston said: "I think the word 'railway' is used in its popular sense, viz., as meaning a way upon which trains pass by means of rails " (y). The workman (1), or, in case the injury results in death, the legal personal representative of the workman (1), and any persons entitled in case of death, shall have the same right of compensation and remedies (2) against the employer as if the workman (1) had not been a workman (1) of, nor in the service of, the employer, nor engaged in his work. (1) As defined by sect. 8. See post, p. 66. (2) That is to say, the defence of "common employment' is taken away, but every other defence will be open to the employer. See Bowen, L. J., in, 1887, Thomas v. Quartermaine, 18 Q. B. Div. 685; 56 L. J., Q. B. 340. (v) McOrd v. Cammell, [1896] A. C. 57; 65 L. J., Q. B. 202. (w) 1883, Murphy v. Wilson, 52 L. J., Q. B. 524. (x) 1882, Cox v. G. W. R., 9 Q. B. D. 106. (y) 1883, Doughty v. Firbank, 10 Q. B. D. 358; 52 L. J., Q. B. 480. 43 & 44 Vict. c. 42, s. 2. Excep tions to amendment of law. Plant erected by a contractor. Duty to examine plant. 2. A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases, that is to say, (1) Under sub-section one of section one, unless -negligence of the employer. Plant erected by a con- The plaintiff was injured by the fall of a wall. The foreman had observed that the wall was unsafe, and ordered a contractor to shore up the wall. This was done, and the foreman, having been assured by the contractor that the wall was safe, sent the plaintiff to his work by it. Shortly afterwards the wall fell. The foreman did not personally inspect it, but trusted to the assurance of the contractor. Held, that there was no evidence of negligence on the part of the defendants or of any person in their service entrusted by them "with the duty," &c. (b). -negligence of the employer. Duty to examine plant. A workman was killed through a rope breaking, by which he was suspended in order to attach a lightning conductor to a high chimney. The evidence showed that the defect in the rope might have been caused by a "nip" in the rope, which could have been detected by the hand of a skilled person, and that no such examination took place before using the rope. Held, there was evidence of negligence on the part of the employer (c). A railway company, employed by the defendant, a coalmaster, as carriers, brought empty waggons to be filled with (a) 1885, Kiddle v. Lovett, 16 Q. B. D. 605. (b) 1889, Moore v. Gimson, 58 L. J., Q. B. 169. (e) 1882, Fraser v. Fraser, 9 Sc. Sess. Cas., 4th Series, 896. |