the reports1. The plaintiff in this case was a servant of the defendant in his trade of a butcher, and the defendant desired him to go with certain goods of the defendant, in a van belonging to the defendant and conducted by another servant. The plaintiff accordingly went, but the van, being overloaded, broke down, and the plaintiff who was riding on it, was thrown off and his thigh broken. Under these circumstances the defendant was held not liable, Lord Abinger C. B. saying: "If the master be liable to the servant in this action, the principle of that liability will be found to carry us to an alarming extent. He who is responsible by his general duty, or by the terms of his contract, for all the consequences of negligence in a matter in which he is the principal, is responsible for the negligence of all his inferior agents. If the owner of the carriage is therefore responsible for the sufficiency of his carriage to his servant, he is responsible for the negligence of his coachmaker, or his harness-maker, or his coachman. The footman, therefore, who rides behind the carriage, may have an action against his master for a defect in the carriage, owing to the negligence of the coachmaker, or for a defect in the harness, arising from negligence of the harness-maker, or for drunkenness, neglect or want of skill in the coachman; nor is there any reason why the principle should not, if applicable in this class of cases, extend to

many others.

1. "It was decided by Lord Abinger without any reference to the earlier doctrine, but it constitutes a clear exception from which has flown a copious flood of all the modern law as to fellow servants and a common employment. It is not extravagant to say that this decision in its influence upon subsequent jurisprudence is second to no adjudication to be found in the reports. No

The master, for

other reported case has changed the current of decision more radically than this. All subsequent common law report books contain refinements upon the doctrine, here for the first time announced, that the superior may not under given conditions be held to respond for the tortious or negligent acts of his agent." Beach, Contrib. Neg.

98.

example, would be liable to the servant for the negligence of the chambermaid, for putting him into a damp bed ; for that of the upholsterer for sending in a crazy bedstead, whereby he was made to fall down while asleep and injure himself; for the negligence of the cook in not properly cleaning the copper vessels used in the kitchen; of the butcher in supplying the family with meat of a quality injurious to the health; of the builder for a defect in the foundation of the house, whereby it fell and injured both the master and the servant by the ruins. The inconvenience, not to say the absurdity, of these consequences, afford a sufficient argument against the application of this principle to the present case. But, in truth, the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. He is no doubt bound to provide for the safety of his servant, in the course of his employment, to the best of his judgment, information and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master. In that sort of employment especially, which is described in the declaration in this case, the plaintiff must have known as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely. In fact, to allow this sort of action to prevail, would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect

the master, are a much better security against any injury the servant may sustain by the negligence of others engaged under the same master, than any recourse against the master for damages could possibly afford. We are, therefore, of opinion that the judgment ought to be arrested."

5. Hutchinson v. York, New Castle & Berwick Railway.The question did not come up again in England until 1850. In that In that year Hutchinson v. York, New Castle & Berwick R. Co.1 was decided and the rule was first directly applied in England to railway companies. The nature of the case sufficiently appears from the judgment of Alderson, B., who said: "The question is whether the defendants are liable for the injury occasioned to one of their own servants by a collision while traveling in one of their carriages in discharge of his duty as their servant; in respect of which injury they would undoubtedly have been liable if the party injured had been a stranger travelling as a passenger for hire. We think that they are not. This case appears to us to be undistinguishable in principle from that of Priestly v. Fowler." His lordship then proceeded to state that case; to explain the principle upon which a master is in general liable for accidents resulting from the negligence or unskillfulness of his servant, and to show that a servant could not recover against his master for injury sustained in consequence of his own unskillfulness or negligence. He then continued: "The difficulty is as to the principle applicable to the case of several servants employed by the same master, and an injury resulting to one of them from the negligence of another. such a case, however, we are of opinion that the master is not in general responsible. Put the case of a master employing A. and B., two of his servants, to drive his 1. 5 Exch. 343; 19 L. J. Exch. 296.

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cattle to market; it is admitted if, by the unskillfulness of A., a stranger is injured, the master is responsible; not so if A., by his unskillfulness hurts himself; he cannot treat that as the want of skill of his master. Suppose then, that by the unskillfulness of A., B., the other servant, is injured while they are jointly engaged in the same service; there, we think, B. has no claim against the master; they have both engaged in a common service, the duties of which impose a certain risk upon each of them, and, in case of negligence on the part of the other, the party injured knows that the negligence is that of his fellow-servant, and not of his master. He knew when he was engaged

in the service that he was exposed to the risk of injury, not only from his own want of skill or care, but on the part of his fellow-servant also, and he must be supposed to have contracted on the terms that as between himself and master he would run that risk. Now, applying these principles to the present case, it follows that the plaintiff has no title to recover. H., the deceased, in the discharge of his duty as one of the servants of the defendants, had put himself into one of their railway carriages under the guidance of others of their servants, and by the neglect of those other servants, while they were engaged together with him in one common service, the accident occurred. This was a risk which H. must be taken to have agreed to run when he entered into the defendant's service, and for the consequences of which therefore they are not responsible. The declaration indeed states the accident to have arisen from the combined neglect of the servants who were managing the carriages in which the deceased was travelling, and other of their servants who were managing the train with which the plaintiff's carriage came into collision; and it was argued that this allegation is divisible, and in order to sustain the declaration it would not be necessary to prove any negligence on the part of

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the train in which H. was travelling; but it would be sufficient to prove negligence on the part of the other train, and so it was contended that even admitting the defendants would not be liable for any neglect on the part of those who were managing the train in one of the carriages of which H. was travelling, yet there could be no principle exempting them from liability for the acts of those who, though equally with H. servants of the defendants, were not at the time of the accident engaged in any common act of service with him. But we do not think there is any real distinction between the two cases. ciple is, that a servant when he engages to serve a master undertakes, as between himself and his master, to run all the ordinary risks of the service, and this includes the risk of negligence upon the part of a fellow-servant when he is acting in the discharge of his duty as a servant of him who is the common master of both. The death of H. appears on these pleadings to have happened while he was acting in the discharge of his duty to the defendants as his masters, and to have been the result of carelessness on the part of one or more other servant or servants of the same masters while engaged in their service. And whether the death resulted from mismanagement of the one train or of the other, or of both, does not affect the principle; in any case it arose from carelessness or want of skill, the risk of which the deceased had, as between himself and the defendants, agreed to run. It may, however, be proper, with reference to this point to add, that we do not think a master is exempt from responsibility to his servant for an injury occasioned to him by the act of another servant, where the servant injured was not at the time of the injury acting in the service of his master. such a case the servant injured is substantially a stranger, and entitled to all the privileges he would have had if he had not been a servant. It was contended that the plea

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