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Vol. IV.)

WOODLEY V. METROPOLITAN RAILWAY Co.

(No. 10.

any injury he may suffer. Now, there can be no doubt that by the law of this country every person who carries on a dangerous trade is bound to take reasonable care that no other person (not being his own servant) suffers a personal injury from the manner in which his trade is carried on. No one has a right to carry on his trade in such a manner as is likely to cause personal injury to others. This liability is not founded on contract. It may be modified or taken away by contract, but it is founded on the right, which is inherent in every one, not to be subject to personal injury from the wrongful or careless act of another. In the case of a servant, who enters into the service of a master who carries on a dangerous trade, the right of the servant to be protected in his person is largely modified by the contract between master and servant. The servant is considered to contract that he will run all the ordinary risks arising from the nature of his master's business, and from the regulations under which it is carried on, and all risks arising from the negligence of his co-servants, but the servant of the contractor enters into no such contract with the railway company, because he enters into no contract with the railway company at all, and his contract with his own master is res inter alios acta, and, in my opinion, is altogether immaterial. I am unable to discover any principle by which railway companies are freed from the liability of taking reasonable care that the servants of contractors are not injured by the passing trains. I think the company is entitled to assume that contractors' laborers who are brought on their line to do repairs are persons who have reasonable nerve and reasonable skill in avoiding danger; but if the company's arrangements are such that persons who have as much nerve and as much skill in avoiding danger as it can be expected contractors' laborers would have, are nevertheless exposed to an undue risk of personal injury, I think that the company are liable for any personal injury they may in consequence suffer. The work which the plaintiff in this case was employed to do was not in itself dangerous at all ; it was disagreeable work, because it was to be performed in a dark and dirty tunnel ; but the danger to which the plaintiff was exposed arose entirely from the act of the company in running their trains, and it is because the danger arose from the acts of the company that the company were the

persons upon whom the duty lay to see that the trains were run in such a manner and with such precautions that the servants of the contractors, who were working in the tunnel with the leave and for the benefit of the company, were exposed to no undue risk. This being in my opinion the nature of the liability of the company, I have next to consider whether there was any evidence that the plaintiff, on the occasion in question, was, through the negligent arrangements of the company, exposed to a greater risk of personal injury than he ought to have been, and I agree with the court below there was such evidence. The question I have to decide is not, whether I myself, if I had been on the jury, should have found that the company's arrangements were negligent, but whether there was evidence from which a jury might reasonably so find. tion mainly depends upon the degree of skill and nerve in avoiding passing trains, which may reasonably be expected from a bricklayer's laborer in a dark tunnel. This is obviously a question of fact on which it is utterly impossible to lay down any rule of law. The jury, under the

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WOODLEY v. METROPOLITAN RAILWAY Co.

(No. 10.

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direction of the judge, have found, that under all the circumstances of the case, — the darkness of the tunnel, there being a curve at the place where

, the plaintiff was working, so that an approaching train could not be seen, the noise of the work and of trains passing on the other side making it difficult to hear an approaching train, — the plaintiff was not sufficiently protected from the risk of personal injury. The jury have also expressed an opinion that the proper precaution to have taken was for the company to have placed a man to warn the workmen when a train was coming. I am quite unable to say, whether this would have been a proper or a sufficient precaution ; but I cannot hold that the conclusions to which the jury have come on pure questions of fact, on which, as it seems to me, some men might reasonably come to one conclusion and some to another, was so wrong that the court is entitled to enter a verdict for the defendants on the ground that there was no evidence to go to the jury. It was argued, however, strongly, on the part of the defendants, that as the plaintiff had been working in the tunnel for a fortnight, though not at the spot at which he was working when the accident happened, and knew that the company were running their trains as usual without taking any precautions for the protection of the workmen in the tunnel, he must be taken to have assented to the trains being so run, and on that account cannot recover. This, as I understand, is the objection which made Baron Cleasby doubt in the court below whether the rule should not be made absolute to enter a verdict for the defendants. Now this defence in substance amounts to a defence of leave and license; and it is possible that though the plaintiff has not bound himself by any contract with the defendants to take upon himself all risk arising from the passing trains, yet he may have licensed the defendants to run their trains as usual without taking any precautions to protect him, and it is necessary to consider whether it was proved that he did so. Is it, then, a necessary inference in point of law from the fact of the plaintiff having worked in the tunnel for a fortnight without making any objection, and without abandoning his service wit his master, that he consented to the company's running their trains as usual without taking any precautions for the safety of the workmen in the tunnel ? In my opinion it is not. In the first place, it is by no means certain that the plaintiff, an ordinary bricklayer's laborer, understood at all what the extent of the risk was which he was running, or what the precautions were, which were reasonably necessary. In the next place, assuming that he did understand what the risk was which he was running, and that he knew that the workmen in the tunnel were not reasonably protected, it seems to me it would be extremely unjust to hold that he was obliged either at once to quit his master's employment or else to lose his right of action against the railway company for negligently running over him. I think he is entitled to say, I know I was running great risk, and did not like it at all, but I could not afford to give up my good place from which I get my livelihood, and I supposed that if I was injured by their carelessness I should have an action against the company, and that if I was killed my wife and children would have their action also. Suppose this case: A man is employed by a contractor for cleansing the streets to scrape a particular street, and for the space of a fortnight he has the opportunity of observing that a particular Hansom cabman drives his cab

Vol. IV.)

WOODLEY V. METROPOLITAN RAILWAY Co.

(No. 10.

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with extremely little regard for the safety of the men who scrape the streets. At the end of a fortnight, the man who scrapes the streets is negligently run over by the cabman. An action is brought in the county court, and the cabman says in his defence, “ You knew my style of driving. You had seen me drive for a fortnight. I was only driving in my usual style."

“Yes, but your usual style of driving is a very negligent style, and my having seen you drive for a fortnight has nothing to do with it.” It will not be disputed that the scraper of the streets in the case I have supposed is entitled to maintain his action, and in my opinion his case does not differ from the case we have to determine, there being no contract between the defendants and the plaintiff any more than between the cabman and the scraper of the streets. On the whole, I am of opinion that the judgment of the court below ought to be affirmed.

BAGGALLAY, J. A. I agree with Mellish, L. J., in thinking that the judgment of the court below should be affirmed. In the view which I take of the case, the plaintiff cannot be regarded as a servant of the company; he was the servant of the contractor; and at the time when the accident occurred he was upon the premises of the company in the course of fulfilling on behalf of his employer a contract in which his employer and the company were jointly interested ; he

jointly interested; he was there upon lawful business, and not upon bare permission. If this be the true view of the case, it appears to me that it cannot be distinguished in principle from that of Indermaur v. Dames, ubi supra ; and that there was a duty imposed by law on the company either to avert the danger or to give the plaintiff reasonable notice of it so that he might protect himself. there, then, in fact, neglect on the part of the company in either of these respects ? I fully assent to the view that the company had a right to expect that the contractor's laborers would be men possessed of a reasonable amount of skill in the performance of their duties, of knowledge of the ordinary risks to which their employment exposed them, and of prudence in avoiding the dangers to which they were subjected; but the circumstances of the present case were very peculiar: the accident which occurred to the plaintiff was not occasioned by the work upon which he was engaged, as by the falling of any portion of the brickwork, or the giving way of a scaffold, — but by the company running their trains at the time

when that work was going on: the real question is, whether the company's train was run in such a manner and with such precautions that the plaintiff was not exposed to any undue risk, and this was essentially a question for the jury. As has been stated by the lord justice, it is impossible to lay down any general rule of law applicable to cases of this description ; each must depend upon its own circumstances. The jury found a verdict for the plaintiff. The learned judge by whom the case was tried was not dissatisfied with that verdict, and the court of exchequer have concurred in it. So far as I am competent to form an opinion from the material facts before us, I agree with the jury in thinking that reasonable precautions were not taken by the company for the protection of the plaintiff

. Whether the jury were right or not in the opinion which they expressed as to what would have been a sufficient precaution, it is immaterial to consider. It was contended on the part of the company that they were under no obligation to adopt measures for the

Vol. IV.)

WOODLEY v. METROPOLITAN RAILWAY Co.

[No. 10

protection of the servants of a contractor against the careless or negligent acts of their own servants, that the plaintiff and other persons similarly situated must enter upon such employment at their own risk, and that unless they were willing to so they should refuse to be so employed. If this is the true state of the law, the company would probably be entitled to have the judgment of the court below reversed; but I cannot adopt this view, concurring, as I do most entirely, in the reasons assigned by Willes, J., in delivering the judgment of the court in the case of Indermaur v. Dames, to which I have already alluded.

MELLOR, J. I am of opinion that the judgment of the court of exchequer must be reversed. The defendants can only be made liable on the proof of some negligent conduct on their part which occasioned the accident by which the plaintiff was injured, and I can discover none. The lord chief baron, in his judgment, suggests, and it is upon this matter alone that he relies as the foundation of the liability of the defendants, “that it was reasonable for the jury to hold that there was an obligation and duty imposed upon the company in this case, for the preservation of human life, to have stationed a man at the bend of the curve, who would have been enabled, on the approach of the train, to have warned the workman and enabled him to escape danger."

Whether any such precaution would have been of any practical value may be doubtful, considering the number of trains passing, even were it possible in the tunnel ; but, if it were, I can see no ground for inferring such an obligation and duty to have existed under the circumstances on the part of the company. Whether it might have been a prudent thing for the contractor to have stipulated for additional precautions, when he undertook the repair of the tunnel, is quite a different question, but I can see no implied obligation on the part of the company, at their expense, to employ such a person as the lord chief baron referred to. No such person was in

any sense necessary for the proper and ordinary working of the defendants' trains, or conducting their business ; and it is not suggested that there was anything done by the company or omitted by the company in the mode of working their trains or carrying on their business of an unusual character, or in any respect differing from the course of working which they had used during the period of the plaintiff's employment; and it seems to me that in principle, so far as the liability of the defendants is concerned, the case does not differ from that of Ellis v. Great Western Railway Company, L. Rep. 9 C. P. 551. It is now completely settled that a master is not liable to one servant for the consequences resulting from the negligence of a fellow-servant in the course of the same employment, on the ground that the servant undertakes, as between himself and his master, the natural risks and perils incident to the performance of his duty, and the presumption is that such risks are considered in the wages. Morgan v. Vale of Neath Railway Company, ubi supra. When, therefore, the contractor in this case undertook to perform the work in question, and in the performance of which the plaintiff was engaged at the time of the accident, it is reasonable to assume that the character and nature of the work was duly considered and included in the price paid for it; and if he thought there was danger of an unusual character in the nature of the work, he ought either to have stipulated with his master, or the

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Vol. IV.]

WOODLEY

V. METROPOLITAN RAILWAY Co.

(No. 10.

company, to provide some additional means or precautions against such possible danger, or, as he was better able to judge than they whether the work could safely be performed without additional precautions, he ought to have refused the task unless they were provided. Now, whether the master has done anything which may make him liable as between himself and the plaintiff we are not concerned to decide. Priestly v. Fowler, 3 M. & W. 1, which is a leading case on the subject, has a strong bearing upon this state of things, and throws light upon the principle upon which this case may be decided. In that case is was said by Lord Abinger, in delivering the judgment of the court, the mere relation of master and servant can never 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 the 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 danger to himself; and in most 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 his master.” In the present case the plaintiff had probably the same opportunity of judging of the possible danger as his master had, and might have declined the work and refused to undertake it without additional precautions being taken or means provided by his master; but as it appears to me that was a matter affecting his relation with his master, and not as in any way affecting the duty of the company, I think that the company can in no respect be said to he guilty of negligence; they conducted the business in the ordinary way, and the accident did not occur through any misconduct or mismanagement on their part; but that the plaintiff, who must be presumed to know the ordinary traffic of the company, and the limited space within which he had to work, came within the maxim volenti non fit injuria, and has at all events no remedy against the defendants.

BAGGALLAY, J. A. (who read the judgment) said: Mr. Justice Grove has not delivered a separate judgment, but he agrees in that of Mr. Justice Mellor, and as the majority of the court are in favor of the appellants, the form of the judgment will be to enter the verdict for the defendants. Judgment for the defendants. Judgment below reversed.

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