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(No. 10.

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 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

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[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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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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It is error for the presiding justice to permit counsel, in addressing the jury, against

seasonable interposition, to proceed with his argument upon asserted facts not in evidence and having no legitimate pertinency to the issue.

ON exceptions and motion.

Case, for injury to plaintiff's wife through defective town way, January 15, 1874.

The case was on trial nearly a week and resulted in a verdict for the plaintiffs of $275, which they moved to set aside for inadequacy, as against law and evidence. They also filed the following bill of exceptions :

“ E. G. Harlow, one of the counsel of the defendants, in his closing argument to the jury at the trial of said case, was permitted by the court, against the seasonable objection and protest of the counsel for the plaintiffs, to state to the jury the amount of damages recovered in other cases than the one on trial, concerning which no testimony had been offered, and which was not in any law report, and to declare as matter of fact that said cases were identical or similar to the one then on trial; and to argue that the damages in the case on trial should in no event be greater than the damages found by the jury in the cases so commented upon; and further, that the cause of action in the case on trial had probably passed out of the control of the plaintiffs in the case, and of the administrator of Elizabeth S. Rolfe, and to state to the jury certain alleged facts as to the death by consumption of other persons than the said Elizabeth S. Rolfe, alleged by said Harlow to be within his knowledge, but concerning which no testimony was offered ; and to argue to the jury that the counsel for plaintiffs came from another county, and had appeared in other cases against other towns in Oxford County, and had recovered damages therein against said towns, although no evidence was offered touching the same, which statements and arguments the plaintiffs' counsel seasonably requested the court to exclude, but which the court declined to exclude. The presiding judge failed to give any instructions touching said acts, arguments, and statements of alleged facts done and made by said counsel for the town, except that the facts were to be settled from the testimony in the case given under oath.”

A. A. Strout fo S. C. Andrews, for the plaintiffs.
E. G. Harlow, for the defendants.

VIRGIN, J. We think the learned judge before whom this case was tried erred in permitting the counsel for the defendants, against the seasonable interposition of the plaintiffs' counsel, to proceed with his argument upon asserted facts not in evidence and having no legitimate pertinency to the issue.

It is indispensable to the orderly course of judicial procedure and an

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impartial administration of the laws, that those officially engaged in the trial of causes shall faithfully observe the established rules of practice. The Constitution guarantees to the parties of a cause the right of a trial by a jury duly constituted, and to have the trial conducted according to the course and usage of the common law and the long established rules of judicial proceedings; and whenever these rules are substantially violated, the right of the parties litigant is to that extend denied.

The law, with great care, prescribes numerous rules for determining the admissibility of the facts to be submitted to the jury, vigilantly and scrupulously excluding from their consideration all such as do not come within the rules. These rules require among other things that the facts shall be material and pertinent to the isue; and that, when not contained in documents, they shall be delivered under the sanctions of an oath, and their truthfulness tested by cross-examination. Even a juror's own personal knowledge of pertinent facts cannot be considered by himself and his fellows in making up their verdict, unless it take on the form of testimony by being delivered from the stand by the juror under oath as a witness. Otherwise, testimony which might influence a verdict would escape the ordeal of cross-examination and discussion. As a sequence of these rules, one of the essential elements in the trial by jury is, that they are sworn to render their verdict in accordance with such facts only as are adduced at the trial; and whenever it is rendered without evidence, against evidence, or upon incompetent evidence which may have come to the knowledge of the jurors by direct ruling in the court-room, or by accident or mistake outside of the court-room, it is liable to be set aside and a new trial granted.

So the courts have usually been very firm, whenever occasion has required, in confining counsel within proper and reasonable bounds to whatever is pertinent to the matter on trial. Statements of alleged facts not adduced in evidence, and comments thereon, are irrelevant, not pertinent, and are therefore clearly not within the privilege of counsel; and any such practice on the part of counsel should be promptly checked, especially when objected to by the other side. Berry v. State, 10 Ga. 511; Mitchum v. State, 11 Ga. 615; Bullock v. Smith, 15 Ga. 395; Dickerson v. Burke, 25 Ga. 225; Wightman v. Providence, 1 Clifford, 524; Tucker v. Henniker, 41 N. H. 317.

In this connection we adopt the views of the courts of Georgia and New Hampshire, expressed in the following forcible and felicitous language :

“ It is irregular and illegal for counsel to comment upon facts not introduced in evidence before the jury, and not legally competent as evidence. The counsel represents and is a substitute for his client; whatever, therefore, the client may do in the management of his cause may be done by his counsel. The largest and most liberal freedom of speech is allowed, and the law protects him in it. The right of discussing the merits of the cause, both as to the law and the facts, is unabridged. The range of discussion is wide. He may be heard in argument upon every question of law. In his addresses to the jury, it is his privilege to descant upon the facts proved, or admitted in the pleadings; to arraign the conduct of the parties; impugn, excuse, justify, or condemn motives, so far as they are

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