fitted to bear, and broke down and gave way, and the crane and engine fell on the plaintiff whilst so engaged in the service of the plaintiff; whereby, &c. Pleas. First, Not guilty. Second. That the defendant had not the care and management or direction of the piers, beams, crane and engine. Third. That the defendant had the care, management, and direction of the piers, beams, crane and engine by means of his servants, that is to say, the plaintiff and others his fellow servants, and not personally, and the defendant had no knowledge of the alleged carelessness, or that the piers and beams were subjected to a weight they were not fitted to bear, and the supposed grievances were committed by the defendant's servants, being the fellow servants of the plaintiff, and not by the defendant personally. Issues thereon. On the trial, before Cockburn C. J., at the Sittings in Middlesex after Trinity Term, 1865, it appeared that the defendant was a maker of locomotive engines, employing a great number of men. In the course of the work a travelling crane was used to hoist the engines and convey them to tenders for their carriages. The crane moved on a tramway, resting on beams of timber, and supported by piers of brickwork; the piers had been recently partly repaired and partly rebuilt, and the brickwork was fresh. It appeared that at the time of the accident the piers first gave way, and then the beams broke from the strain thus cast upon them. The accident occurred on the first occasion of using the crane, and it was the first time that the plaintiff had been employed upon it. There was no evidence that there was any defect in the crane, or negligence in the mode in which it was used, or that the engine was 1866. FELTHAM V. ENGLAND. 1866. FELTHAM V. ENGLAND. of unreasonable or improper weight; nor of any per- Upon its being objected by the defendant's counsel that there was no case to fix the defendant with liability, either personally or for the act of his manager or foreman, the Lord Chief Justice reserved the question for the Court, and the case went to the jury, who found for the plaintiff, with 2001. damages. In Michaelmas Term, a rule nisi was obtained to enter a nonsuit or verdict for the defendant, if the Court should be of opinion that there was no evidence of the liability of the defendant. The case was argued in Trinity Term, May 25 and June 4, before COCKBURN C. J., BLACKBURN, MELLOR and SHEE JJ. Digby Seymour and Daly, for the plaintiff.-First. The foreman was placed in the position of a deputy master, and therefore the defendant is responsible for the order given by him; Grizzle v. Frost (a), before (a) 3 F. & F. 622: Cockburn C. J. [Cockburn C. J. I hoped the question Secondly. Here is an implied warranty on the part of the master that the place in which his servant is employed is a place of ordinary safety; at any rate he ought to take reasonable steps to ascertain that it is so. Montagu Chambers and Hance, for the defendant.First. If a competent foreman directs a workman to do that which is dangerous, the master is not liable for injury sustained by him, the foreman being for this purpose a fellow workman; Wigmore v. Jay (a), Gallagher v. Piper (b), per Erle C. J. and Willes J.; Morgan v. The Vale of Neath Railway Company (c). [Cockburn C. J. referred to Holmes v. Clarke (d).] Secondly. The declaration does not allege that the defendant knew that the brickwork of the piers was in a dangerous or defective state; nor was it shewn to be so palpably insufficient that he ought to have known it was dangerous. If the plaintiff considered that there was danger he should have declined to be employed until the brickwork had been tested, otherwise he acts as if there was a warranty by the master that the employment was safe. In Brown v. The Accrington Cotton Spinning and Manufacturing Company (limited) (e) Martin B. said:" Suppose a man negligently built a house, and continued to occupy it knowing the defect and ten years afterwards he employed a workman in it, (a) 5 Exch. 354. (b) 16 C. B. N. S. 669. 670. 689. 694. (c) 5 B. & S. 570; affirmed on appeal, Id. 736. 1866. FELTHAM V. ENGLAND. 1866. FELTHAM V. ENGLAND. when it fell in consequence of the original defect, would the owner of the house be liable?" Cur, adv. vult. MELLOR J. now delivered the judgment of the Court. This case stood over on the suggestion that another case (a) was pending for argument, before us, which involved the same points. On the hearing of that case a few days ago it was found not to involve any question applicable to the present. We therefore give our judgment upon the facts which appeared on the trial of this case. [His Lordship stated them.] On the argument before us it was contended that the defendant was liable on two grounds. Firstly. It was urged that the foreman or manager was an "alter ego" of the master, and not a fellow servant of the plaintiff, and that he was guilty of negligence in not ascertaining the sufficiency of the piers before he ordered the plaintiff to get upon the engine to clean it as it travelled along. Secondly. It was urged that there was evidence to fix the defendant personally with negligence in permitting the engine to be removed by means of the piers, when he might and ought to have known that they were not sufficient for the purpose. We are of opinion that the plaintiff is not entitled to succeed on either ground. We think that the foreman or manager was not, in the sense contended for, the (a) Webb v. Rennie, 4 F. & F. 608, in which a rule for a new trial granted only on the ground of the verdict being against the evidence was made absolute. On the second trial the facts proved were nearly the same as those on the first, and, the Lord Chief Justice having left the case to the jury in the terms in which he had left it on the first, a verdict was given for the plaintiff. representative of the master. The master still retained the controul of the establishment, and there was nothing to shew that the manager or foreman was other than a fellow servant of the plaintiff, although he was a servant having greater authority. As was said by Wilies J. in Gallagher v. Piper (a), "A foreman is a servant as much as the other servants whose work he superintends." There was nothing in the present case to shew that he was an incompetent or improper person to be employed as foreman or manager. We are unable to distinguish the case on this point from those of Wigmore v. Jay (b), Gallagher v. Piper (a), and Skipp v, The Eastern Counties Railway Company (c). We think that this case ranges itself with a great number of cases by which it must be considered as conclusively settled that one fellow servant cannot recover for injuries sustained in their common employment by the negligence of a fellow servant, unless such fellow servant is shewn to be either an unfit or improper person to have been employed for the purpose; Morgan v. The Vale of Neath Railway Company (d). And this rule is not altered by the fact that the servant to whom the negligence was imputed was a servant of superior authority, whose lawful directions the plaintiff was bound to obey. It is difficult in the present case to discover evidence that the foreman was guilty of any negligence; but the conclusion at which we have arrived renders it unnecessary to determine that question. With regard to the second ground relied upon on the (a) 33 L. J. C. P. 329. 331. 335; S. C. 16 C. B. N. S. 669. 670. 694. (d) 5 B. & S. 570; affirmed on appeal, Id. 736. 1866. FELTHAM V. ENGLAND. |