318 



NEGLIGENCE IN THE USE OF HORSES, ETC. 



Where there 

 are several 

 ways of doing 

 a thing. 



Liability of an 

 employer. 



What is the 

 question in 

 such cases. 



Drain re- 

 pau'ed by an 

 ordinary but 

 sldlful 

 labourer. 



dividual, through a hole having formed in the roadway 

 from the natural subsidence of the ground, the work 

 having been properly completed by the defendant {k). 



So, if a man employs another to do a thing, and there 

 are several ways of doing it, one criminal and another 

 innocent, and he does it in a criminal manner, the em- 

 ployer is not liable (/). 



If a Contractor, however, is employed to do an unlawful 

 act, the employer is liable, because in such case the act of 

 the employed is the act of the employer. Therefore 

 where the defendants had employed a Contractor to open, 

 without legal authority, the Streets of Sheffield, and the 

 plaintiff was injured by the rubbish, it was held that this 

 being the act from which the injury arose, the defendants 

 were liable {ui). And where a duty is imposed on the 

 defendant by common law (ii), or by a statute (o), he 

 cannot excuse himself by throwing the blame on his 

 Contractor. 



The question in such cases is, whether the injury was 

 the act of the party as the employer's servant, or in the 

 character of Contractor ; because in the first case the 

 employer would be liable to an action, and in the second 

 he would not {p). And the test applicable to the de- 

 termination of this fact is whether the employer has any 

 control over the persons employed as to the manner in 

 which their work should be performed {q). 



Thus the defendant with the consent of the owner of 

 the soil and the surveyor of the district, emj)loyed P., who 

 was an ordinary labourer, but nevertheless a person par- 

 ticularly skilled in the construction of drains, to cleanse a 

 drain, which ran from the defendant's garden under the 

 public road, and paid P. five shillings for the job. The 

 defendant had never before employed P., and did not in 

 any way interfere with or direct him in doing the job. 



{k) m/ams V. Webster, L. R., 2 Q. 

 B.264; ■L.E,.,4Q.B.138— Ex.Ch. 



(/) Peachei/ v. lioland, 13 C. B. 

 182. See, too, Cleveland v. Spie?; 16 

 G. B., N. S. 399. 



{»>) Ellis V. Sheffield Gas Co., 23 

 L. J., Q. B. 42. And see Whitclcij 

 V. Fvpjyer, L. E., 2 Q. B. D. 276 ; 

 46 L. J„ Q. B. 436; 36 L. T., N. 

 S. 588; 25 W. R. 607. 



(«) Tarry v. Ashton, L. E,., 1 Q. 

 B. D. 314 ; 45 L. J., Q. B. 260 ; 

 34 L. T., N. S. 97; 24 W. R. 581. 



See also Bower v. Peaie, L. R., 1 

 Q. B. D. 321; 45 L. J., Q. B. 446; 

 35 L. T., N. S. 321. 



(o) Hole V. Sittinghoiirne Railway 

 Co., 6 H. & N. 488; 30 L. J., Ex. 

 81. 



[p) Knight v. Fox, 5 Ex. 725 ; 

 Overton v. Freeman, 21 L. J., C. P. 

 52. 



[q) Sadler v. Uenloek, 24 L. J., 

 Q. B. 138; Blake v. Thirst, 2 H. & 

 C. 20 ; Butlers. Hunter, 7 H. & N. 

 826. 



