Clarke, Appellant v Holmes, Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 11 February 1862 |
| Date | 11 February 1862 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 751
IN THE EXCHEQUER CHAMBER. APPEAL FROM THE COURTS OF EXCHEQUER.
S. C. 31 L. Ex. 356; 8 Jur. (N. S.) 992; 10 W. R. 405. Not applied, Smith v. Howard, 1870, 22 L. T 132 Applied, Britton v. Great Western Cotton Company, 1872, L. R. 7 Ex. 136. Adopted, Weblin v. Ballard, 1886, 17 Q. B. D. 124. Observed upon, Thomas v. Quatermaine, 1887, 18 Q B. D 690.
H.4N. 937 CLARKE 1'. HOLMES 751 [937] in the exchequer chamber. (Appeal from the Court of Exchequer.) clarke, Appellant v. holmes, Respondent. Feb. 11, 1862.-The plaintiff was employed by the defendant to oil dangerous machinery. At the time the plaintiff entered upon the service, the machinery was fenced, but the fencing became broken by accident. The plaintiff complained of the dangerous state of the machinery, and the defendant promised him that the fencing should be restored. The pLiintiff, without any negligence on his part, was severely injured in consequence of the machinery remaining unfenced Held in the Exchequer Chamber (affirming the judgment of the Court of Exchequer), that the defendant was liable for the injury. [S. C. 31 L. Ex. 356 ; 8 Jur. (N. S.) 992 ; 10 W. E 405. Not applied, Smith v. Howard, 1870, 22 L. T 132 Applied, Brittm v. Cheat Western Cotton Company, 1872, L. R. 7 Ex. 136. Adopted, WeUm v. Bollard, 1886, 17 Q. B. D. 124. Observed upon, Thomas v. Quatermaine, 1887, 18 Q B. D 690.] This was an appeal from the decision of the Court of Exchequer in discharging a rule to enter a nonsuit or grant a new trial. The pleadings and facts fully appear in the report of the case, 6 H. & N. 349. T. Jones argued for the defendant (the appellant) in last Hilary Vocation (b) (Feb. 4 and 5). Both upon principle and authority the plaintiff is not entitled to recover -} for he voluntarily undertook a dangerous service, with full knowledge of the danger, and in consideration of wages adequate to the risk. Negligence does not affect the question, because danger is the essence of the vocation. [Cockburn, C. J The plaintiff complained of the dangerous state of the machinery, and was told that it should be rectified. Wightman, J. The defendant was under a statutory obligation to fence the machinery, and in consequence of his not doing so the accident happened.] The omission to fence was not the proximate cause of the mischief. The Factory Acts, 7 & 8 Viet. c. 15, and 19 & 20 Viet. c. 38, were not passed [938] for the benefit of adults, but for the benefit of women and children. Their object is to protect those who are unable to take care of themselves; not persons who voluntarily expose themselves to danger. The 7 & 8 Viet, c 15, s. 21, only makes it unlawful not to fence machinery near which children or young persons are liable to pass or be employed. The question is whether a person, who for adequate wages accepts a dangerous employment, with full knowledge of the danger, can afterwards sue his employer for injury sustained in the course of that employment. [Keating, J, referred to Mellors v. Shaw (1 B. & S. 437) ] The finding of the jury only amounts to this, that the plaiotiff performed a dangerous occupation carefully. [Cockburn, C J. The danger arose from tbe machinery not being fenced. There is always more or less danger in descending or ascending a mine, but it is the duty of the mine owner to take all reasonable precautions against accident: Pat&'son v. Wallace (1 Macqueen, 748), Bartonshitt Coal Company v. Reid (3 Macqueen, 266) ] There was no accession of danger beyond that originally accepted. [Cockburn, C. J. The reason why no action will lie, under ordinary circumstances, ia because the servant knows that he baa undertaken a dangerous service, heref there was extraordinary danger, and was only submitted to on a promise by the master that it should be remedied.] Piiestly v. F&wUr (3 M. & W. 1) shews, that wherever a servant accepts a dangerous occupation, he must bear the risk. [Cockburn, C. J. That is, whatever is fairly within the scope of tke occupation, including the negligence of fellow-servants, here it is the negligence of the master. Crompton, J. It cannot be made part of the contract, that the master shall not be liable for his own negligence ] The question is, what was the actual bargain between the plain tiff and defendant. [Byles, J. While the machinery was fenced, was not this the contract of the plain-[939]-tiff. "I will work with fenced machinery ," after the fencing was: broken, was not the contract. " I will continue to work, if you will restore the fencing'"] Negligence is only a form of voluntary contribution. The ground upon which negligence is an answer proceeds (6) Before Cockburn, C. J, Wightman, J., Williams, J., Crompton, J, Willes, J,, Byles, J , and Keating, J. 752 CLARKE V. HOLMES 7 H. & N. 940 from the maxim, " volenti non fit injuria." A master is not liable for injury to his servant whilst using dangerous machinery, simply because the master knew it was unsafe, if the servant had the same means of knowledge William* v. Clouyh (3 H. & N. 258). In Roberts v Smith (2 H & N. 213) it'was assumed that mere knowledge on the part of the master that the scaffold was unsafe, would not render ham liable, and the new trial was granted on the ground that there was evidence...
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