particular facts is often much involved and the subject of much contention (7).

We have thus seen how far an employer is relieved from responsibility for the acts of his servants or agents to their fellowservants. As this in no way diminishes his responsibility for his

(1) What constitutes a master often involves distinctions that are extremely fine. When a plaintiff has no right otherwise, his endeavour is to prove that the master of the servant who injured him is not his master. The test of whether an employer is master or not is, has he control over the servant, or has some one else; and if he has parted with such control by lending or hiring him to another he is no longer liable. (Rourke v. White Moss Colliery Co., 2 C. P. D. 205; also Laugher v. Pointer, 5 B. & C. 547, 1826, followed in Quarman v. Burnett, 6 M. & W. 499.) In Moore v. Palmer, 51 J. P. 196, 1886, C. A., coram Esher, Bowen, and Fry, a stevedore, to load a ship, hired from the defendant a donkey engine on a barge, with a man, Norton, to work it. The duty of the plaintiff's husband, the foreman of the stevedore, was to give the word for hoisting or lowering, and through Norton's negligence, in mistaking the signal, a sack fell and killed him. Held, plaintiff could recover from the defendant, as he still retained the control over and was master of Norton; but in Donovan v. Laing, &c., (1893) 1 Q. B. 629, wharfingers, to load a ship, hired from the defendants a crane with a man, Wand, to work it. The duty of the plaintiff, a workman of the wharfingers, was to give the word for hoisting and lowering, and through Wand's negligence in not waiting for the signal, the crane swung round and injured him. Held, plaintiff could not recover from the defendants as they did not retain control over Wand. Unfortunately, in this case Moore v. Palmer was not cited, so we do not know in exactly what respects the two cases are to be distinguished.

In Manning v. Adams Bros., 32 W. R. 430, 1884, a stevedore unloading a ship for the defendants agreed to take a penny per ton less if assisted by the crew. The plaintiff, his foreman, was injured by the negligence of one of such crew. Held, the defendants, the shipowners, were not liable, as the crew were under the control of the stevedore, and therefore fellow-servants. But in Master v. Innes & Co., 10 T. L. R. 403, though a boy was engaged, paid, and dischargeable by a sub-contractor, still it was held there was some evidence for the jury as to who was principal employer.

See also the cases of Cameron v. Nystrom, (1893) A. C. 308, where the servant of a shipowner was injured by the servant of the stevedore and recovered; Oldfield v. Furness, 9 T. L. R. 515, C. A., where the question was whether one Johnson was the foreman or independent contractor of the defendants; Wild v. Waygood, (1892) 1 Q. B. 783, another case of a borrowed workman held to be servant of borrower; and Murray v. Currie, L. R. C. P. 24. As to the position of butty men see Brown v. Butterley, 53 L. T. 964, and, similarly, Robertson v. Russell, 1885, 12 R. 634.

own acts or negligence nor for those of his partner (m), it will be well to briefly consider what duty an employer owes to his servants at Common Law.

In the first place, there is no duty on a master personally to superintend the work. Lord Cairns thus states the law in Wilson v. Merry, L. R. 1 Ap. Sc. 332, 1868-"The master is not and cannot be liable to his servant unless there be negligence on the part of the master in that, in which he, the master, has contracted or undertaken with his servant to do. The master has not contracted or undertaken to execute in person the work connected with his business. The result of an obligation on the master personally to execute the work connected with his business, in place of being beneficial might be disastrous to his servants, for the master might be incompetent personally to perform the work. At all events, a servant may choose for himself between serving a master who does and a master who does not attend in person to his business (). But what the master is, in my opinion, bound to his servant to do in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so (0), and furnish them with adequate materials and resources. When he has done this he has, in my

(m) Ashworth v. Stanwix, 30 L. J. Q. B. 183: an employer is also answerable for his wife acting for him, Miell v. English, 15 L. T. 249. (n) Nor is there any exception to the rule on dangerous employment. (Cribb v. Kynoch, (1907) 2 K. B. 548.)

(o) Is this too broad, or is the rule as to superintendents acting in place of masters who do not attend to business and other servants the same? As to the former, does a master warrant their competence, or only that he has used care in selecting them? Does the rule as stated by Lord Cairns, in the same case, almost in the next sentence, equally apply to them? As was said in Tarrant v. Webb, 25 L. J. C. P. 263, "negligence cannot exist if the master does his best to employ competent persons. He cannot warrant the competency of his servants." "To remedy this and make masters who do not personally attend to their business equally responsible with masters who do was one of the main purposes of the Act": Lord Watson, in Smith v. Baker, (1891) A. C. p. 354. This being so, the common law duties of a master in this respect will only be of importance in a case where the Act does not apply.

See Note (c), p. 14, as to selection of superintendent.

opinion, done all that he is bound to do." If, however, a master does interfere he must do so competently.

In Warren v. Wildee (Weekly Notes, 1872, 87), where there was a defect in a gas pipe, and a barmaid was injured by an explosion, owing to the master trying to put it right himself, instead of sending for a plumber, she was held entitled to recover. So in Roberts v. Smith, 2 H. & N. 213, the plaintiff, a bricklayer, was injured by a scaffold giving way, owing to some of the timber, called putlogs, used in its construction, being rotten. This the master knew, and the plaintiff did not, and as there was evidence the master personally interfered and was guilty of negligence the Court set aside a nonsuit and sent the case back for trial (p).

"A master must furnish adequate materials and resources." As regards the duty of a master to his servant in this respect, the law is thus generalized by Lord Cranworth, in Paterson v. Wallace, 1 Macqueen 748, 1854, which was the case of a miner who was killed by a large stone, left in the roof of a working, being loose and falling upon him. "Where a master employs a servant in a work of a dangerous character he is bound to take all reasonable precautions for the safety of that workman. It is the master's duty to be careful that his servant is not induced to work under a notion that tackle or machinery is staunch and secure when, in fact, the master knows, or ought to know, that it is not so; and if from any negligence in this respect damage arise, the master is responsible" (q).

(p) In Ashworth v. Stanwix, 30 L. J. Q. B. 183, a master was held equally responsible where his partner so interfered.

(9) See also Weems v. Mathieson, 4 Macqueen 215, where a plaintiff's son was killed by an iron cylinder falling on him through a defective fastening, Bartonshill Co. v. Reid, 3 Macqueen 266; cases cited in Note (n), p. 17; Roberts v. Smith, 2 H. & N. 213 (supra); Mellors v. Shaw, 30 L. J. Q. B. 333, where a miner was injured through want of sufficient lining of a shaft, and the master superintended; and (contra) Murray v. Merry, 1890, 17 R. 815, where reasonable fencing only was required; and Henderson v. Carron Co., 1889, 16 R. 633, where an iron furnace was dangerous through incrustations.

This duty of the master to the servant equally applies when his servant is coming to or leaving his work, and as to the latter even when

A master does not warrant his tackle, &c., as sound, only that he has used due care to ensure they shall be sound, and obtaining them from competent makers is strong evidence of his having used such care (). To make him responsible, the statement of claim must allege that he knew, or ought to have known, of the defect,

he is leaving it for an unlawful purpose, Brydon v. Stewart, 2 Macqueen 30 H. L. As to his duty to him when doing him a gratuitous service, as driving him in his trap, see Moffat v. Bateman, L. R. 3 P. C. 115.

So also a master should not use plant for improper purposes. In Welsh v. Moir, 1885, 12 R. 590, a contractor used a travelling crane to tear up rails with sleepers attached. Owing to the pivot on which it revolved breaking, the crane fell and killed the husband of the pursuer. Held, the crane being put to an improper use, and the contractor not proving the accident was due to a latent defect in the pivot, the defenders were liable. Volentia was negatived on the ground he was an ignorant workman who did not appreciate the risk he ran. But in Bruce v. Barclay, 1890, 17 R. 811, it was otherwise. There a contractor, in breaking up a wreck in a harbour, fixed a rope to the part to be loosened, fastened it to his traction engine, and hauled away. The method had been explained to the men, and approved of by them. An accident happened, but the defendants were held not liable.

(r) Priestly v. Fowler, 3 M. & W. 1, 1837. In Ormond v. Holland, E. B. & E. 102, the plaintiff, a workman for some builders, was injured through a defective ladder breaking. Erle, J.: "The defendants have shown they took due care. The question of law therefore is, whether a master warrants the soundness of the materials; and he does not." In Potts v. Plunkett, 9 Ir. C. L. R. 290, a plaintiff was injured by a flagstone which he had to stand upon breaking. Held, defendants not liable. In Brown v. Accrington Spinning Co., 34 L. J. Ex. 208, a plaintiff could not recover because a mill fell through insufficient pillars, the defendants having used reasonable care. In Potts v. Port Carlisle Dock and Rly. Co., 2 L. T. 283, a turntable gave way through being defective and killed plaintiff's husband. Cockburn, C. J.: "To sustain this action it is necessary to show not only that the turntable is defective, but that the defendants had been guilty of negligence in this-they had not used due care in employing competent persons to do the work." In Seymour v. Maddox, 20 L. J. Q. B. 327, an actor who fell through an unfenced hole in a floor he had to pass on going to the stage could not recover; and in Searle v. Lindsay, 31 L. J. C. P. 106, where a plaintiff was injured through a winch handle coming off owing to the negligence of the chief engineer in not properly securing it, he could not recover.

Equally a shipowner does not warrant his ship is seaworthy, Couch v. Steel, 23 L. J. Q. B. 121, but he must use all reasonable care to ensure its being so, 39 & 40 Vict. c. 80, s. 5.

In Thomson v. Dick, 1892, 19 R. 804, the husband of the pursuer was engaged in pulling down an old building, and was killed by the fall of a scaffold erected by himself and two other experienced men. Held, defenders not liable.

and that the servant did not (s). Perhaps this view of the law is rather too broad now, having regard to recent decisions, and the doctrine of knowledge has been somewhat modified or explained by Smith v. Baker, (1891) A. C. 325, followed by Williams v. Birmingham Battery Co., (1899) 2 Q. B. 338. Here a workman employed on a tramway had no proper means provided by which to descend. Owing to this, on trying to do so he was killed. The Court of Appeal found for the plaintiff, holding there was all the difference between employers not finding proper appliances in the first instance, and their doing so and such then becoming defective (t).

So, also, a master is not responsible for latent defects (u), but it is his duty to test for those which may arise in the course of wear (r). This is not a personal duty cast upon him, and if he delegate it to a competent person or servant, that will exonerate

(s) Griffiths v. London & St. Katharine Dock Co., 13 Q. B. D. 259; Watling v. Oastler, 40 L. J. Ex. 43. The ignorance of the servant may be inferred from the statement of claim, but it must be inferred. Also Ogden v. Rummens, 3 F. & F. 751; and Paterson v. Wallace (supra).

(t) The following were the questions left to the jury, with their answers-Did the defendants exercise due care to leave the tramway in a safe condition so as to protect their servants working upon it against unnecessary risk? No. Was it dangerous to descend from the tramway without the means of a ladder? Yes. Had the deceased the same means of knowing that this was dangerous as the defendants had? Yes. Did the deceased know it was dangerous? Yes. Was he guilty of contributory negligence? No. To have entitled the defendants to judgment the jury ought to have been asked-Did the deceased contract to take the risk? See also Pyner v. Bullard, 14 T. L. R. 57.

(u) In Redhead v. M. R., L. R. 4 Q. B. 379, a passenger was injured through a wheel breaking through a latent defect. Railway held not liable; see also Richardson v. G. E. R., 1 C. P. D. 342.

(x) In Murphy v. Phillips, 35 L. T. 477, a stevedore was injured by a chain breaking owing to a link which was partly worn and partly defective. As there were means of testing, and the master had neglected to use them, he was held liable. And the tests should be applied even if not absolutely infallible, Manser v. E. C. R., 3 L. T. 585. So in Webb v. Rennie, 4 F. & F. 608, where a scaffold pole was left in the ground for two years and became rotten and broke, and had never been examined. Held, defendants liable. As to what was held adequate examination, see Richardson v. G. E. R. Co., 1 C. P. D. 342. In Hanrahan v. Ardnamult S. S. Co., 22 L. R. Ir. 55, the plaintiff failed though no examination was made; and see also Gavin v. Rogers, 1889, 17 R. 206.