Vol. IV.] SPICE v. BACON. [No. 10. where the plaintiff was a guest; the property in question was of small bulk, so that it would be easily abstracted, and of considerable value, the value being agreed at £114 8s. 6d. I do not forget that in these cases the question is one of comparison, and I find the legislature, in the Innkeeper's Act (26 & 27 Vict. c. 41), taking a much smaller sum, £30, as the limit of an innkeeper's ordinary liability. That being the character of the property, the plaintiff might have handed it over to the innkeeper to take care of, but, as to the watch especially, that might not be a convenient course; there was a chest of drawers near the door with a lock and key to them, and a dressing-table with a drawer in it which could be locked. The property was placed on the drawers and on the table, except the money, which was put into the pocket of some article of dress. The property was taken away in the night. The plaintiff might have locked the door of his room, but some people have an objection to doing that; or he might have locked the property up in the drawers. He took none of these courses, but left the property without taking steps for its security, and the result was that it was stolen. On the facts, it is not necessary to say that the jury ought to have concluded that the plaintiff did not take reasonable care, if there was sufficient evidence to go to the jury on which they could reasonably find against the plaintiff. The jury, on the question left to them, have found for the defendant, and having so found on the question, if the question was a proper one, and accompanied by proper directions, there is an end of the case, and there must be judgment for the defendant. That brings me to the main point, as to the form of the question left to the jury and the direction. The first question left to the jury was as follows: "Was the plaintiff guilty of negligence or of any breach of duty in not locking his door, which caused, or materially contributed, to the loss of his property?" If this question stood alone, it would be open to criticism; but it was accompanied and preceded by a summing up and explanation, and it would be unfair to take it alone. Besides this, counsel did not object to the question. In the summing up there is a clear statement that there is no rule of law that a guest is bound to lock his door. In the summing up, and in the final question, there is reference to one particular act, that of locking the door, and the criticism to which the direction is open is that, instead of leaving to the jury the question whether the plaintiff took reasonable care, the chief baron put it to the jury whether they thought the plaintiff ought to have locked his door; I should be sorry to say any single word implying that there is any rule of law as to this. The fault of the direction, if any, is that it is too narrow; but the jury found for the defendant on this point, and in the face of a summing up which, on the whole, was not favorable to the defendant. The conclusion is, that if the direction had been broader, the jury would have found for the defendant, and if it is open to criticism, it would be to criticism from the defendant. it had been more correctly worded, it would have been more favorable to the defendant. It meant this: "You have all the circumstances before you, and you can see what steps the plaintiff could have taken to secure his property, and you must consider, if he was not prepared to take any of these steps, whether he ought to have locked his door." In substance, the jury were asked to consider all the circumstances. On a question of If Vol. IV.] WOODLEY V. METROPOLITAN RAILWAY CO. [No. 10. misdirection, by Order XXXIX., r. 3, we must consider whether some substantial wrong or miscarriage has been occasioned by the direction. Assuming that the question left to the jury was too narrow, I cannot think that any substantial wrong was occasioned by it, for if the direction had been broader, there would still have been a verdict for the defendant, so we ought not to send the case back for a new trial. I therefore think that the finding on this question amounts to a verdict for the defendant, and there should be judgment for the defendant. COCKBURN, C. J. I entirely concur that the law is as it has been laid down by the lord chancellor, and I agree that the judgment should be for the defendant, and there should be no new trial. I am anxious to guard against expressing any opinion that the verdict of the jury was right, but I think it is a question for the jury whether reasonable care was exercised by the plaintiff. It is a question of fact on all the circumstances, and if I could see my way to the conclusion that the jury were not invited to consider all the circumstances, I should be disposed to direct a new trial. Taking the passages in the summing up which have been read by the lord chancellor, it appears to me that there must have been present to the minds of the jury, not the abstract question whether it is a prudent course for a guest at a hotel not to lock his door, but whether the plaintiff acted prudently under the circumstances, and one circumstance to be considered would be the value of the property with reference to its bulk. The question was one for the jury, and there was evidence to go to them, and therefore I think there is no reason for order ing a new trial. BRAMWELL, L. J. I am entirely of the same opinion. I have some misgiving as to whether the form of the chief baron's direction is open to any objection at all. The defendant says: "I find no fault with the plaintiff for not handing over the property to be taken care of, nor for not locking it up in the drawers, but I find fault with him because, as things were so, he did not lock his door." Judgment reversed and entered for the defendant. [FEBRUARY, 1877.] MASTER AND SERVANT. - - DANGEROUS EMPLOYMENT. - RAILWAY. INJURY OF CONTRACTOR'S SERVANT. - NEGLIGENCE, ETC. WOODLEY v. METROPOLITAN RAILWAY CO. Plaintiff was in the employ of a contractor engaged by defendants to make excavations in a tunnel. Trains were constantly passing the spot, which was on a curve and dark. No one was stationed to give an alarm, although precautions had been previously taken to protect other workmen similarly employed. Plaintiff was struck by a train and injured. Held, that defendants were not liable. THE action was to recover damages for injury sustained by the plaintiff whilst working under a contractor upon the defendants' railway. The Vol. IV.] WOODLEY v. METROPOLITAN RAILWAY Co. [No. 10. jury at the trial found for the plaintiff with £300 damages, but leave was reserved to the defendants to move to enter the verdict for them. A rule was obtained, and on cause being shown, was discharged by the exchequer division. The defendants appealed from this decision. The facts and the arguments before the court of appeal fully appear in the judgments (post). Cave, Q. C. & Meadows White, for the defendant, cited: Seymour v. Maddox, 16 Q. B. 326; Indermaur v. Dames, 14 L. T. Rep. N. S. 484; L. Rep. 1 C. P. 274, and in error 16 L. T. Rep. N. S. 293; L. Rep. 2 C. P. 311; 36 L. J. 181, C. P.; Morgan v. Vale of Neath Railway Company, 13 L. T. Rep. N. S. 564; L. Rep. 1 Q. B. 149; 35 L. J. 23, Q. B.; Wiggett v. Fox, 11 Ex. 832. Francis, for the plaintiff, cited Bilbee v. The London, Brighton & South Coast Railway Company, 13 L. T. Rep. N. S. 146; 34 L. J. 182, C. P.; Skelton v. The London & Northwestern Railway Company, 16 L. T. Rep. N. S. 563; L. Rep. 2 C. P. 631; L. J. 249, C. P.; Patterson v. Wallace, 1 Macq. H. of L. Cas. 748; Bartonshill Coal Company v. Reid, 3 Macq. H. of L. Cas. 266; Holmes v. Clarke, 31 L. J. 356, Ex.; Watling v. Oastler, 23 L. T. Rep. N. S. 815; L. Rep. 6 Ex. 73; 40 L. J. 43, Ex. The following judgments were delivered: COCKBURN, C. J. In this case, which was an action to recover damages for an injury sustained by the plaintiff from one of the defendants' trains having struck him while at work on their premises, the jury found for the plaintiff with £300 damages, but a rule was obtained on leave reserved to enter a verdict for the defendants, on the ground that the plaintiff, having voluntarily exposed himself to the danger, the defendants were not bound to adopt precautionary measures for his protection. The facts of the case are as follows: The plaintiff was a workman in the employ of a contractor engaged by the defendants to execute certain work on a side wall on their line of railway, in a dark tunnel. Trains were passing the spot every ten minutes, and the line being there on a curve, the workman would not be aware of the approach of a train till it was within twenty or thirty yards of him. The space below the rail and the wall, on which the workman had to stand while at work, was just sufficient to enable him to keep clear of a train when sensible of its approach. The place in question was wholly without light. No one was stationed to give notice of an approaching train. The speed of the trains was not slackened when arriving near where the men were at work, nor was any signal given by sounding the steam whistle. It is unnecessary to say that the service on which the plaintiff was thus employed was one of extreme danger. While he was reaching across the rail to find a tool he had laid down, a train came upon him suddenly, struck him, and seriously injured him. It appeared that, on a previous occasion, when similar work was being done, a lookout man had been stationed to give warning of approaching trains, but this precaution had been discontinued. Under these circumstances, I have no hesitation in saying that, morally speaking, great culpability attaches to the defendants for having omitted to adopt any precautionary measures to lessen as much as possible the danger to which the plaintiff and his fellow-workmen were exposed. The jury have found that they were herein guilty Vol. IV.] WOODLEY v. METROPOLITAN RAILWAY Co. [No. 10. of negligence; and, according to the recent decision of the House of Lords in Bridges v. The North London Railway Company, 30 L. T. Rep. N. S. 844; 43 L. J. N. S. 151, Q. B., the question of negligence, if there is any evidence to go to the jury, is for the jury, and not for the court. But in this case, I am bound to say that, in my view, so far as the question of negligence was concerned, not only was there evidence to go to the jury, but the verdict was in this respect perfectly right. Whether, notwithstanding that the injury to the plaintiff was caused by the negligence of the defendants, the latter are in point of law liable, is a different question, and one on which I have had considerable difficulty in making up my mind. If the plaintiff, in doing the work on the railway, is to be looked upon as the servant of the company, the decision of the exchequer division in his favor cannot, as it seems to me, be upheld. It could not be said that any deception was practised on the plaintiff as to the degree of danger to which he would be exposed. He must be taken to have been aware of the nature and character of the work, and its attendant risk, when he entered into the employ of the contractor for the job in question; or, at all events, he must have become fully aware of it as soon as he began to work. If he had been misled in supposing that precautionary measures, such as the dangerous nature of the service rendered reasonable necessary, would be taken, he had a right to throw up his engagement, and to decline to go on with the work; and such would have been his proper course. But, with a full knowledge of the danger, he continued in the employment, and had been working in the tunnel for a fortnight when the accident happened. A man who enters upon a necessarily dangerous employment with his eyes open, takes it with its accompanying risks. On the other hand, if the danger is concealed from him, and an accident happens before he becomes aware of it; or if he is led to expect, or may reasonably expect, that proper precautions will be adopted by the employer to prevent or lessen the danger, and from the want of such precautions an accident happens to him before he has become aware of their absence, he may hold the employer liable. If he becomes aware of the danger which has been concealed from him, and which he had not the means of becoming acquainted with before he entered on the employment, or of the necessary means to prevent mischief, his proper course is to quit the employment. If he continues in it, he is in the same position as though he had accepted it with a full knowledge of its danger in the first instance. He must be taken to waive his right to call upon the employer to do what is necessary for his protection, or, in the alternative, to quit the service. If he continues to take the benefit of the employment, he must take it subject to its disadvantages. He cannot put on the employer terms to which he has now full notice that the employer never intended to bind himself. It is competent to an employer, at least so far as civil consequences are concerned, to invite persons to work for him under circumstances of danger caused or aggravated by want of due precautions on the part of the employer. If a man chooses to accept the employment, or to continue in it, with a knowledge of the danger, he must abide the consequences, so far as any claim to compensation against the employer is concerned. Morally speaking, those who employ men on dangerous work without doing all in their Vol. IV.] WOODLEY v. METROPOLITAN RAILWAY Co. [No. 10. power to obviate the danger are highly reprehensible, as I certainly think the company were in the present instance. The workman, who depends on his employment for the bread of himself and his family, is thus tempted to incur risks to which, as matter of humanity, he ought not to be exposed. But looking at the matter in a legal point of view, if a man, for the sake of the employment, takes it, or continues in it, with a knowledge of its risks, he must trust to himself to keep clear of injury. But it may be said the plaintiff was not in the service of the defendants at all; he was on their premises, not only in lawful business, but it may be said by their invitation, as he was working under a contractor employed by them to do the work in question; he sustained the injury complained of through what the jury have found to have been negligence on the part of the company; he is, therefore, entitled to damages. But this reasoning appears to me to be fallacious. That which would be negligence in a company, with reference to the state of their premises or the manner of conducting their business, so as to give a right to compensation for an injury resulting therefrom to a stranger lawfully resorting to their premises in ignorance of the existence of the danger, will give no such right to one who, being aware of the danger, voluntarily encounters it, and fails to take the extra care necessary for avoiding it. The same observation arises as before. With full knowledge of the manner in which the traffic was carried on, and of the danger attendant on it, the plaintiff thought proper to remain in the employment. No doubt he thought that, by the exercise of extra vigilance and care on his part, the danger might be avoided; by a want of particular care in depositing one of his tools, he exposed himself to the danger, and, unfortunately, suffered from it. He cannot, I think, make the company liable for injury arising from danger to which he voluntarily exposed himself. The contractor, the immediate employer of the plaintiff, undertook to execute work which he knew would be attended with danger in the service under which it was to be executed. The plaintiff, as his servant, did the same. They are in a very different position from that in which they would have stood had they been at work on the defendants' premises in ignorance of the danger. The conclusion, therefore, at which I have arrived, I must say with much regret, as I think the conduct of the defendants open to great reprehension, is, that the judgment of the exchequer division is wrong and must be reversed. MELLISH, L. J. The course which the argument in this case has taken makes it desirable to consider, in the first place, whether railway companies are under any obligation to take reasonable care that the servants of contractors, who are brought on the line for the purpose of repairing the works of the railway, do not suffer personal injury from the passing trains. In the court below it seems to have been taken for granted that railway companies were under such an obligation; but it is now contended that they are under no such obligation, and that the servant of the contractor, if he does not like to incur the risk of being run over, must throw up his employment with his master, and that, however great may be the risk to which he is exposed, and however great may be the negligence of the arrangements of the railway company with respect to the running of their trains, he has no action against the railway company for |