servant would have been.1 Yet if such volunteer be at the time also acting for another master, or in his own business, and with assent of the master assisted, then he will be treated as a stranger, and not as a fellow servant so far as regards the rule mentioned.2

The discovery of this rule as to fellow servant's negligence, an example of judge-made law. This rule as to the non-liability of a master for injuries caused by the negligence of one servant to his fellow servant may be said to be a discovery only of the last generation. It is one of the most remarkable illustrations of the way in which new doctrines are developed by judicial reasoning. This process has generally been by lawyers, and even by laymen, boasted of as the pride of the human intellect, though it was denounced by Bentham and Austin as a fraud on the legislature and a scandal to the public. The rule in question, the fruit of that reasoning, when once found and earmarked, has been since recognised as the soundest sense, and has passed current in the business of life like a coin of the realm or a bale of goods having a fixed value in the market. Yet whichever theory of the common law be accepted-whether common law is only the remains of old statutes worn out by time, or a collection of general maxims of wisdom which must be applied to ever-varying circumstances-it must be conceded, that this specific product of reasoning was unknown to Bracton, to Coke, and Hale, to Holt, to Camden, and Mansfield; and while it lay hid in the earlier ages, none of these oracles of the law had the least glimmering of it as a practical conclusion. And yet so clear and self-evident does it now seem, that we are bound to assume, that, if those judges had set themselves to work out the same problem with their own materials, they would have solved it in the same way. This is only another mode of showing how inevitable and beneficial a process that is, which has been ignorantly denounced as judge-made law. It is nothing else but that unity of thought and reasoning which links age to age, and keeps up a body of practical wisdom

1

Degg v Midland R. Co., 1 H. & N. 773; Potter v Faulkner, 1 B. & S. 800. 2 Warburton v G. W. R. Co., L. R., 2 Exch. 30; Holmes v N. E. R. Co., L. R., 4 Exch. 254; Wright v L. & N. W. R. Co., L. R., 10 Q. B. 298; 45 L. J., Ap. 570. Priestley v Fowler, 3 M. & W. 1 (A. D. 1837).

3

under the name of law, treating it as a great inheritance, of which each judge is in turn but the steward, and which he passes on with all its current accounts, its undeveloped mines of treasure, and its accretions, to his next successor. The problem in the present instance arose thus: Given that a servant is to some extent the agent or hand of the master. Given that in some contracts one party would be ready to insure the other against all risks, and in some he would not. Given that if two strangers come into collision, and one negligently breaks the other's leg, he must pay compensation for that injury. Given that there are some accidents for which nobody is to blame, and for which no compensation is recoverable. Given that each man is the most vigilant guardian of his own personal safety, and no third party can protect him so well as himself. Given that none would be so foolish as to guarantee another against all the consequences of that other's negligences and mistakes in all circumstances. Given that it is unfair to expose another to risks which he does not know of and has never meant to undertake.

The new combination of facts calling for a solution was this: If a master have a thousand servants, and while two of them are moving a log of wood, one by his negligence breaks the other's leg, is the master to pay compensation for the broken leg of that servant, or is he not? This was the practical point to be ascertained. Each and all of the above axioms and truisms was familiar to all the old judges, but they had never had these specific facts upon which to apply them. Yet it was only by setting one of these propositions against another, balancing them, weighing, sorting, and compounding them, that the court in 1837 arrived at its conclusion, just as Coke and Hale and Mansfield would have arrived at theirs. The chief reasons that prevailed were, that, if the master was to be liable, he would be setting himself up as an Accident Assurance Bank, guaranteeing his servants against the consequences of their own negligence and folly, and giving each a premium for his carelessness: whereas, each servant, knowing all that the master knew, having it in his power to defend himself against danger better than the master could possibly teach him-being on the spot and able to stop at any moment when danger threatened-it was more likely that he should

have all along intended to take this risk on himself than that he looked to the master for his insurance. The court therefore held that the master was not liable for the broken leg caused by the fellow servant's carelessness. The conclusion, such as it was, is an example of judge-made law, a result of fair reasoning and inference from admitted rules and limitations, a balancing of conveniences and inconveniences, such as all other reasoners use when searching for a higher rule to comprehend some new combination of facts.

How far servant has claim against master for injuries in service. But though the master is not bound to pay damages to his servant who is injured by the carelessness of a fellow servant, yet he is bound to use due care in engaging for each servant proper fellow servants, who are reasonably competent to discharge the duties of the service.1 If this were not so, a careful servant, however careful, might be incapable of self-defence, if his master thrust him into companionship with unskilful and ill-conducted and reckless fellow servants.

How far master warrants tackle used by servants.—A master is impliedly bound to supply sound tackle and machinery used in any dangerous service, and to do all things, reasonably necessary, for its safe use by the servants. Hence it follows, that if the servant is injured by its unsafe state, the master is liable to the servant. The master ought to know if the tackle is safe so far as it can be made safe by reasonable examination; as, for example, where the tackle of a coal-pit or the shaft is unsafe, and unfit for use of the men; or where dangerous machinery, which used to be fenced, has ceased to be fenced. But a master does not warrant a servant against injuries caused by his own carelessness in doing his work on the master's premises, the risk of all such being impliedly taken by the servant, and especially as the

1 Hutchinson v York. & C. R. Co., 5 Exch. 343.

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2 Paterson v Wallace, 1 Macq., H. L. C. 748; Williams v Clouch, 3 H. & N. 258; Ashworth v Stannix, 30 L. J., Q. B. 183; Roberts v Smith, 2 H. & N. 213; Skip v E. C. R. Co., 9 Exch. 223; Bartonshill Coal Co. v Reid, 3 Macq., H. L. C. 266 ; Id. v Macguire, Ib. 300.

3 Mellor v Shaw, 1 B. & S. 437. 4 Holmes v Clarke, 6 H. & N. 349; Couch v Steel, 3 E. & B. 402.

servant's knowledge must be equal to the master's.1 A servant is, in modern times, no longer compelled to serve, and may exercise his discretion as to entering on the service; but when once he enters upon it, he must take it with all its drawbacks.2 And though the master warrants to some extent the tackle and apparatus used by the servant, this applies only to dangerous employments, for in ordinary affairs the servant is or ought to be as good a judge of the sources of danger, and as well able to guard against these, as the master. Hence also the master is not liable for any defect in materials supplied by third parties for the master's or servant's use. If, for example, every tradesman who supplied the master with bad materials, were liable to the servant, who suffered some accident in using these, there would be no end or limit to the number of actions brought. All such accidents accordingly, as between master and servant, must be treated as only the chances of the service. But this rule has again been pushed to excess, and the owner of a mine or a manufactory of dangerous machinery is now absolutely bound by law to fence it, so as to guard against accidents.. The master will be held liable, if he fail to obey this statute, unless indeed the servant with his eyes open expressly accepts the risks. In such cases, accordingly, the important point still is, whether the injured person accepted such risk or not.5 The principle cannot in any case be laid down, that the servant is entitled to calculate on the master obeying this statute; and though it seems singular that a servant can practically dispense with a statute by simply taking the risk on himself, it must be recollected, that however stringent any statute may be, it will never be able to guard entirely against rash and wilful acts.

1 Brown v Accrington Co., 3 H. & C. 511; Assop v Yates, 2 H. & N. 768; Seymour v Maddox, 16 Q. B. 332; Senior v Ward, 1 E. & E. 385; Morgan v Vale of Neath R. Co., 5 B. & S. 570; L. R., 1 Q. B. 145; Lavell v Howell, 45 L. J., C. P. 387; Allen v New Gas Co., 45 L. J., Exch. 668.

2 Bolch v Smith, 7 H. & N. 736. 3 Collis v Selden, L. R., 3 C. P. 495. 4 Vose v L. & Y. R. Co., 2 H. & N. 728; Holmes v Clark, 6 H. & N. 349; Senior v Ward, 1 E. & E. 385. 5 Britten v G. W. R.

Co., 41 L. J., Exch. 99.

Negligence of servants and masters in dangerous trades.— To reduce the danger arising to servants and workmen in mines and factories, the legislature has intervened to supply some defects. In mines a single shaft is prohibited, and two such means of outlet must be kept open to every seam of the mineral worked by miners.1 And as an indirect check on the carelessness of management, the owner must give prompt notice of each accident causing personal injury or loss of life to the local inspector.2 And notice of any likely source of danger given by the inspector must be immediately attended to and remedied. And anyone who wilfully commits an act reasonably calculated to endanger the safety of persons, or cause personal injury in a mine, may be imprisoned for three months, besides being subject to other remedies.4

In factories, also, dangerous machinery must be securely fenced, which is likely to cause bodily injury to the employed, and which any inspector points out to the owner's notice.5 And the same as regards those parts of the works which are peculiarly dangerous to young persons coming

in contact with them."

And as manufactories for making and storing gunpowder are more than usually dangerous, severe punishment awaits all who commit acts calculated to endanger life. The factory and its interior must be licensed, constructed, and used according to strict and minute regulations calculated for safety of life, and inspectors are appointed to watch all sources of danger. What clothes workmen shall wear, what things of danger shall be taken inside, what tools and ingredients may be used, are all specified. Gunpowder is not to be hawked or sold in the street, or to children, or unless in canisters marked; it is not to be conveyed except in safe packages. In harbours, railways, and canals minute bye-laws regulate every step of the custody and removal of this material. Any act done wilfully or negligently which is reasonably calculated to

135 & 36 Vic. c. 76, § 20. 2 35 & 36 Vic. c. 76, § 39; 35 & 36 Vic. c. 77, § 11. 3 35 & 36 Vic. c. 76, § 46; 35 & 36 Vic. c. 77, § 18. 4 35 & 36 Vic. c. 76, § 61; 35 & 36 Vic. c. 77, § 32. 7 & 8 Vic. c. 15, § 43; 19 & 20 Vic. c. 38, § 6. 8 Vic. c. 15, § 20; 19 & 20 Vic. c. 38, §§ 4, 5. 17, § 10.

6 7 & 7 38 & 39 Vic. c.