1861. HOLMES v. CLARKE. said to consent to accept the risk when, with knowledge that the statute is broken, he continues to work.] It is clear that, independently of the statute, there is no ground of action. The question then is, whether the circumstance of the defendant being under an obligation to fence the machinery, and liable to a penalty for omitting to do it, gives a right of action to the plaintiff who voluntarily incurs the danger and is paid for incurring it. The statute does not say that the master shall not only be liable to a penalty, but also to an action at the suit of the party injured. [Pollock, C. B. -In Caswell v. Worth (a) Coleridge, J., and Crompton, J., were of opinion that the imposition of a penalty did not deprive the party injured of his right to sue for damages.] Senior v. Ward (b) is an authority that the master is not liable, if the servant, by his own negligence in knowing and disregarding the danger, has materially contributed to the accident. [Wilde, B.-Here the jury found that the plaintiff was not guilty of negligence in continuing in the service.] The plaintiff, being aware that the defendant was guilty of an infraction of the law, was in one sense an abettor of it. [Pollock, C. B.-The neglect of the master to fence machinery is not such an offence as to render the servant an accomplice.] If the plaintiff is entitled to recover, every master will be liable who permits a servant to enter upon and pursue an occupation which the servant knows to be hazardous. The plaintiff, who was a weekly servant, should have left the service: having chosen to continue, it was at his own risk Shipp v. The Eastern Counties Railway Company (c), Assop v. Yates (d), Dynen v. Leach (e), Priestley v. Fowler (f). [Pollock, C. B.-The doctrine on this subject has arisen since Lord Abinger took his seat in this Court: (a) 5 E. & B. 849. (c) 9 Exch. 223. (d) 2 H. & N. 768. before that time there is no instance of such an action. In subsequent cases the doctrine has been somewhat qualified. If the master is aware of some defect in his machinery, or that a rope or a scaffold is not safe, and he directs his servant to use it, he is responsible. It must not be assumed. that in no case can a servant maintain an action against his master in respect of injury caused by a fellow servant. It would be quite consistent with the authorities if we were to hold that a footman might recover against his master for injury arising from the neglect of the coachman or groom, the services being different (a). Wilde, B.-The whole doctrine is thoroughly elaborated in Senior v. Ward (b).]—He also referred to Hutchinson v. The York, Newcastle and Berwick Railway Company (c), and Wigmore v. Jay (d). POLLOCK, C. B., now said :-This was an action for an injury sustained by the plaintiff while in the service of the defendant, who was a cotton spinner, and whose machinery ought to have been protected, but was not, in consequence of which the plaintiff sustained the injury. The facts of the case are shortly these:-When the plaintiff entered into the defendant's service, the machinery was protected by an iron guard; but, after he had been some months in the service, the guard was broken either by accident or decay, and the machine remained unprotected. The plaintiff complained of it more than once, and was told that the guard should be restored. This was not done; and whilst the plaintiff, in the course of his duty, was oiling the machinery, he sustained the injury for which the action was brought. At the trial, before my brother Wilde, a verdict was found (a) See Abraham v. Reynolds, 5 H. & N. 143. (b) 1 E. & E. 385. (c) 5 Exch. 343. (d) 5 Exch. 354. 1861. HOLMES CLARKE. 1861. HOLMES v. CLARKE. for the plaintiff, and leave was reserved to the defendant to move to enter a nonsuit on the grounds submitted by his counsel. Two points were made: one a matter of fact, the other of law. First, it was said that the plaintiff had caused the injury by his own negligence; but the jury expressly found that the plaintiff was not guilty of negligence either in the manner in which he oiled the machinery or in remaining in the defendant's service after the protection was removed from it. Therefore the rule on that ground fails. The point of law was, that the plaintiff having undertaken a dangerous service, with knowledge of the danger, could not recover damages in consequence of an injury which ensued from the risk which he had voluntarily undertaken ; and the case of Priestley v. Fowler (a) was relied on, which was certainly a case of the first impression, and has given rise to what may almost be called a new branch of the law. We are also of opinion that on this point the rule ought to be discharged. Where machinery is required by act of parliament to be protected, so as to guard against danger to persons working it, if a servant enters into the employment when the machinery is in a state of safety, and continues in the service after it has become dangerous in consequence of the protection being decayed or withdrawn, but complains of the want of protection, and the master promises to restore it, but fails to do so, we think he is guilty of negligence, and that if any accident occurs to the servant he is responsible. Many cases might be put in which a servant might reasonably incur the risk instead of abandoning the service; and if, during a period when the danger of the service is increased by the machinery becoming unprotected, either by accident or from other cause, the servant complains and the master promises that the protection shall be restored, it (a) 3 M. & W. 1. must be considered that the master takes upon himself the responsibility of any accident that may occur during that period. For these reasons we are of opinion that the plaintiff is entitled to recover in this action, and the rule to enter a nonsuit or grant a new trial must be discharged. Rule discharged. 1861. HOLMES v. CLARKE. SEYMOUR V. GREENWOOD. Jan. 20. DECLARATION.-That the plaintiff was a passenger The plaintiff, for reward in and upon a certain carriage of the defendant, used for the conveyance of passengers in a certain public street in the city of Manchester, to wit Chester Road, and being and while he was such passenger, the defendant and his servants so negligently and improperly conducted themselves in and about the driving, managing and conducting of the said carriage, that the plaintiff was thereby cast from the said carriage to the ground with great violence, and his skull was fractured and his legs crushed and bruised, and he suffered great personal injuries, &c. a passenger by an omnibus, while being forcibly re moved from it by the guard in charge, was thrown on the ground and seriously injured. The proprietor of the omnibus, on being applied to for compensation. stated that the plaintiff was drunk and Pleas.-First: Not guilty. Secondly, that the plaintiff had refuse was not a passenger. to pay his fare. On crossexamination did not deny that he had ing.—Held, been drink At the trial, before Blackburn J., at the last Liver- the plaintiff pool Spring Assizes it appeared that the action was brought against the defendant, the proprietor of an omnibus, by the plaintiff, who had been forcibly removed from the omnibus by the guard in charge of it, whereby the plaintiff's skull was fractured. that if the guard intended to put the plaintiff safely The plaintiff's witnesses out of the omnibus, there was evidence that in so doing he was executing the commands of the proprietor his master; and that if the injury was caused by the guard acting without due care în executing such command the proprietor was responsible. 1861. SEYMOUR τ. GREENWOOD. EXCHEQUER REPORTS. proved that the plaintiff pulled the wire and the bell rung. The guard then went into the omnibus and seized the plaintiff by the collar. The plaintiff offering no resistance, the guard backed himself out of the omnibus, drawing the plaintiff after him, and threw the plaintiff upon the road. The plaintiff fell to the ground, and a cab, coming up, went over him. The guard did not fall. This was in August, 1859. In December the plaintiff's attorney wrote to the defendant as follows. "Sir, I have been requested by Mr. Seymour to write to you in reference to the serious injuries he sustained at the hands of your servants on the 22nd of August last. “I may state that he was a passenger on that day in your omnibus, &c. He signalled the guard to stop and let him alight. By the negligence and improper conduct of the guard, Mr. Seymour was cast with great violence upon the roadway. One of your Hansom cabs, which was following the omnibus, immediately came into contact with Mr. Seymour's head. I shall be glad to receive any communication from you upon the subject, &c. "Mr. John Greenwood." 66 "I am, Sir, "R. W. Stead." In consequence of that letter a person named Baxter called on the plaintiff's attorney. He said that Mr. Seymour was mistaken in signalling the guard to stop; that he was drunk, and had refused to pay his fare; that he had created a disturbance in the omnibus lower down the road; that he had first assaulted the guard, and that there had been a scuffle, and that in the scuffle they had both rolled out into the road. On cross-examination, the plaintiff said his memory was much affected by the accident, but he believed he was not drunk at the time, but he admitted that he had been drinking. |