Morgan v The Vale of Neath Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1865 |
| Date | 27 November 1865 |
| Court | Court of the King's Bench |
English Reports Citation: 122 E.R. 944
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, 5 B. & S. 736 (with note).
morgan against the vale of neath railway company. [Monday, July 4th], 1864. - Master and servant. Negligence of fellow servant. Liability of master. - M. was employed by a railway Company as their servant to do work as a carpenter to the roof of an engine shed at their station whilst the railway traffic was being carried on in it by their servants. In the course of this employment he was standing upon a scaffold which was erected near to one of the turntables. The porters of the Company who were engaged in shifting a locomotive engine allowed it to project so far beyond the turntable that, in turning it, the end of the engine, by their negligence, struck against a ladder which constituted one of the supports of the scaffold. The scaffold gave way in consequence, and the plaintiff was thrown off and injured. In an action by M. against the Company : Held, by Blackburn and Mellor JJ., that the nature of M.'s employment was such aa to make him and the servants by whose negligence he suffered servants in a common employment, within the rule which exempts the employer from responsibility to his servant for the consequences of the negligence of a servant in a common employment : Cockburn C.J. concurring, out-ol deference to the authority of Hutehinsoh v. The York, Newcastle and Berwick Railway Company, 5 Exch. 343, and Waller v. The, South Eastern Railway Company, 2 H. & C. 102. [Affirmed in Exchequer Chamber, 5 B. & S. 736 (with note).] The declaration stated that the defendants were possessed of a locomotive steam engine, which was then at a certain station of the defendants at Neatb, near to a certain engine shed there, on which the plaintiff was lawfully employed in doing certain repairs thereto, and the steam engine was then being turned and moved about on a certain turntable close to the engine shed, under the care, management, and control of certain servants of the defendants : and thereupon it became and was the duty of the defendants and their servants to use due and proper care, skill and diligence in and about the management of the steam engine : Yet the defendants so 5B. &S. 71. MORGAN V. THE VALE OF NEATH RAILWAY CO. 945 carelessly, improperly, negligently and unskilfully managed the steam engine, and took so little care iti such management, that, by the wrongful act, neglect and mismanagement of the defendants and their servants, the steam engine was driven against and struck [571] a ladder, hy which a certain scaffolding, on which the plaintiff was then standing for the purpose of doing the repairs to the engine shed was in part supported, and thereby caused the scaffolding to fall and come down, and the plaintiff to be thrown violently to the ground ; by tnaans whereof the plaintiff was severely bruised, hurt and wounded, and permanently injured and rendered unfit for work, and incurred great expenee and loss of time in endeavouring to be cured of the said injuries. Plea. Not guilty. On the trial, before Wilde, B., at the Glamorganshire Summer Assizes, 1863, the following facts appeared. The plaintiff was by trade a carpenter, and in December, 1862, was with other carpenters in the employment of the defendants at weekly wages. The duties of the carpenters in the employment of the Company are to perform all carpenter's work they may be directed to do by the inspector of the line for the general purposes of the Company. On the 23rd December the plaintiff was employed by the defendants to do certain carpenter's work to the roof of an engine shed situate at the Neath Station of the defendants' railway, for the doing of which it was necessary that a scaffold should be erected near a certain turntable of the defendants, on and by means ol which their engines and carriages were moved and turned by their porters and servants, The scaffold was erected accordingly in the proper position to enable the plaintiff to do auch work, and was in all respects proper and sufficient as regards materials and construction for the purposes for which it was required to be used. The plaintiff had ascended the scaffold and was standing thereon in the performance ol his work as a carpenter on the roof of the shed, when certain railway [572] porters in the employ of the defendants, who were in the course of such employment engaged in shifting a locomotive engine by means of the turntable, allowed the engine to project so far beyond the same that in turning the engine the end of it struck against aad displaced a ladder which constituted one of the supports of the scaffold. The scaffold gave way in consequence, and the plaintiff was precipitated from it to the ground, and received thereby severe bodily injuries. The occurrence was caused solely by the negligence and carelessness of the defendants' servants in the management of the engine and turntable, and was not in any way attributable to contributory negligence on the part of the plaintiff or of any other persons. It was objected, on the part of the defendants, that the plaintiff and the persons through whose negligence the injury was caused being alike the servants of the Company, and the injury having occurred when they were severally engaged in doing the Company's work, the defendants were not liable; whilst, on behalf of the plaintiff, it was contended, that the plaintiff and the servants who caused the injury were engaged in different operations and distinct departmonts of work, and that there was, under the circumstances, no such community of employment between the plaintiff and those servants as to exempt the defendants from liability for the negligent act which caused the injury. The learned Judge thereupon nonsuited the plaintiff, but gave him leave to enter a verdict for an agreed sum. Grove, in Michaelmas Term, 1863, obtained a rule nisi accordingly, on the ground that there was no common employment such as to exempt the defendants from liability. [573] In Easter Term, May 2nd, before Grnlcburn C.J., Blackburn and Mellor JJ., Giffard and S. J. Bowen shewed cause.-Where the injured servant and the other servant whose negligence caused the injury were engaged in a common employment for a common purpose under the same master, so that the former, when he entered into the service, might reasonably have contemplated the risk of sustaining the injury from the negligence of the latter, an action is not maintainable against the master ; Hutchinson v. The York, Newcastle and Berwick Railiuay Company (5 Exch. 343), Waller v. The South Eastern Railway Cmnpany (2 H. & C. 102). But if the employment of the injured servant is so foreign to that in which the other servant is engaged that the former could not have known or expected any risks from negligence of fellow servants he may be considered as a stranger to his master for the purpose of bringing an action against him; Bartonshill Coal Company, Appls., Reid, Eespt., Same, Appts., 946 MORGAN V. THE VALE OF NEATB RAILWAY CO. S B. & S. 874 McGuii-e, Respt. (3 Macq. 266. Id. 300, 307). In the former case, p. 295, Lord Cranworth gives the criterion that, to constitute fellow labourers within the doctrine which protects the master from this responsibility, "it is not necessary for this purpose that the workman causing and the workman sustaining the injury should both be engaged in performing the same or similar acts. The driver arid the guard of a stage coach, the steersman and the rowers of a boat, the workman who draws the red hot iron from the forge and those who hammer it into shape, the engineman who conducts a train and the man who regulates the switches or the signals, are [574] all engaged in a common work. Atid so in this case, the man who lets the miners dowti into the mine, in order that they may work the coal, and afterwards brings them up, together with the coal which they have dug, is certainly engaged in a common work with the miners themselves. They are all contributing directly to the common object of their common employer, in bringing the coal to the surface." In McNaughton v. The Caledonian Railway Company (19 Court of Seas. Ca. 271, 273, note) the Lord Ordinary puts, as exceptions from the rule in Priestley v. Fowler (3 M. & W. 1), the following cases in which the two persons, viz., the wrongdoer and the injured, "though both at the time servants of one master, are engaged in different operations, and in distinct departments of work. A dairymaid ia bringing home milk from the farm, and is carelessly driven over by the coachman. A painter or slater is engaged at his work on the top of a high ladder, placed against the side of a country house, and is injured by the carelessness of the gardener, who wheels his barrow against the ladder and upsets it. A clerk in a shipping Company's office is sent on board a ship belonging to the Company with a message to the captain, and he meets with injury by falling through a hatchway, which the mate has carelessly left unfastened, though apparently closed. A ploughman is at work on a piece of ground held by a railway Company, and adjacent to a railway, atid is, while in the employment of the Company, killed by an engine, which, through the rashness or carelessness of the engine-driver, leaps from the line of rails into the field." But it is clearly not necessary that the wrongdoer and the person injured should be in the same form [575] of employment, Hutchinson v. The York, Newcastle and Berwick Railway Company (5 Exch. 343), which wag treated in both cases in the House of Lords as properly expounding the law. And here the plaintiff, who was employed in doing jobs about the railway station, must have contemplated the possibility of accidents from the negligence of his fellow servants: the repairing of the shed in order to protect the engines from the weather is ancillary to...
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