Woodley v Metropolitan District Railway Company
| Jurisdiction | England & Wales |
| Year | 1876 |
| Date | 1876 |
| Court | Court of Appeal |
Master and Servant - Negligence - Sub-Contractor under Railway Company - Common Employment.
The plaintiff, a workman in the employ of a contractor engaged by the defendants, had to work in a dark tunnel rendered dangerous by the passing of trains. After he had been working a fortnight he was injured by a passing train. The jury found that the defendants in not adopting any precautions for the protection of the plaintiff had been guilty of negligence:—
Held, by the majority of the Court of Appeal (Cockburn, C.J., Mellor and Grove, JJ.), reversing the decision of the Court of Exchequer, that the plaintiff having continued in his employment with full knowledge, could not make the defendants liable for an injury arising from danger to which he voluntarily exposed himself:
Held by Mellish, and Baggallay, L.JJ., dissenting, that the plaintiff, as servant to the contractor and not to the defendants, had entered into no contract with the latter which would modify the ordinary duty of those who carry on a dangerous business to take reasonable precaution that no one should suffer personal injury from the manner in which it is carried on; and that no such contract should be inferred from the plaintiff remaining in his employment.
THIS was an action tried before Kelly, C.B., at the Middlesex sittings for Hilary Term, 1874. The action was to recover damages for injuries received by the plaintiff through the alleged negligence of the defendants under the circumstances narrated in the judgments of the Court of Appeal. A verdict was found for the plaintiff for 300l., leave being reserved to the defendants to move to enter a verdict for the defendants or a nonsuit. A rule nisi was accordingly applied for and obtained, on the ground that there was no breach of duty on the part of the defendants towards the plaintiff which caused the injury to him. Against this rule the plaintiff shewed cause, and it was discharged by a judgment of the Court of Exchequer (Kelly, C.B., Cleasby and Amphlett, BB.F1), in Michaelmas Term, 1874.
The defendants appealed to the Court of Appeal.
1875. Feb. 24. Cave, Q.C., and F. M. White, for the defendants.
Francis, for the plaintiff.
[The following cases were cited: Seymour v. MaddoxF2; Indermaur v. DamesF3; Morgan v. Vale of Neath Ry. Co.F4; Wiggett v. FoxF5; Bilbee v. London, Brighton, and South Coast Ry. Co.F6; Skelton v. London and North Western Ry. Co.F7;
Paterson v. WallaceF8; Bartonshill Coal Co. v. ReidF9; Holmes v. ClarkeF10; Watling v. Oastler.F11]
1877. Feb. 14. THE COURT (Cockburn, C.J., Mellish and Baggallay, L.JJ., Mellor and Grove, JJ.,) having differed in opinion, the following judgments were read by Baggallay, L.J.:—
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 300l. 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 were 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 workmen would not be aware of the approach of a train till it was within twenty or thirty yards of them. The space between the rail and the wall, on which the workmen had to stand while at work, was just sufficient to enable them 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, and struck and seriously injured him.
It appeared that on a previous occasion, when similar work was being done, a look-out 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 attached 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 of negligence, and, according to the recent decision of the House of Lords in Bridges v. North London Ry. Co.F12, 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 Court of Exchequer in his favour 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 risks 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 reasonably 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 on 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 want 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, and 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...
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