FELLOW-SERVANTS CAUSING INJURY. 193 



risk.' " («) The master is not liable if there is contributory 

 negligence on the part of the servant,(?)) nor if the servant 

 is injured when acting clearl}^ outwith his employment, even 

 under the order of the master ;(c) but the master is liable if 

 the injury is clearly the result of an act of negligence on 

 his part, the servant being in such a case in the same 

 position as a third party, both as regards the claim and the 

 onus of proof ;(fZ) and this holds when the servant is so 

 injured by a danger which was not obvious, or when the 

 risk is not incidental to his employment, (e) 



158. Fellow-Servants Causing Injury. — One of the risks 

 a servant runs in contracting service with his master is the 

 negligence of fellow-servants. (/) Accordingly the master is 

 not liable for injuries to a servant caused by a fellow-servant, 

 provided he has taken reasonable care to provide competent 

 servants ; still less when the injured servant is only casually 

 assisting the master's other servants. ((/) This relation of 

 fellow-servant must be clearly established to exempt the 

 master from liability, and it has been held that in an action 

 to recover damages for injury caused by the negligence of 

 the defender's servant, the defence of common employment 

 is not applicable, unless the injured person and the servant 

 whose negligence caused the injury were not only engaged 

 in a common employment, but were in the service of a 

 common master.(^-) Again, a man was engaged in deliver- 

 ing his master's cattle to a railway company for carriage, and 



(a) Crichton v. Keir, 1863, 1 M. 407, 411. 

 (h) See § 161. 



(c) Sutherland v. M. Ry. Co. 1857, 19 D. 1004 ; M'Nav/jhton v. Cal. Hy. Co , 

 1858, 21 D. 160. 



(d) See § 150. 



(e) Fraser, M. and S. 187, 188. 



(/) Lord Cranworth in Bartonshill Coal Co. v. Reid, 1856, 3 M'Q. 266 ; Alder- 

 son, B., in Hutchinson v. Y. N. A B. Ry. Co., 1850, 19 L..T., Ex. 296. 



(fj) Erie, C. J., in Potter v. Faulkener, 1861, 31 L.J., Q.B. 30. 



(A) Johnson v. Lindsay [1891] A.C. 371 (over-ruling Woodhead v. Gartncss Iron 

 Co., and disapproving Macguire v. Russell, and explaining Lord Cairns in Wilson 

 V. Merry). 



O 



