194' FELLOW-SERVANTS CAUSING INJURY. 



was being assisted by the company's servants in trucking 

 them, when, through the fault of the company's servants, a 

 train struck the truck and injured the driver of the cattle. 

 The company pleaded in defence to an action by the injured 

 man that he was a volunteer in their service for the time ; 

 the defence was repelled, and it was held that the railway 

 company were liable in damages. (ct) But if the master 

 himself is acting as fellow-servant, he is answerable for injury 

 caused to his servant, because a servant is entitled to expect 

 from his master " the care and attention which the superior 

 position and presumable sense of duty of the latter ought to 

 command." (6) The Employers Liability Act, 1880, (c) 

 while giving a workman the same right of action as a third 

 party against his master, for injuries sustained while in his 

 service, by reason of deficiency of plant, or negligence, or 

 improper rules, provides that the master is no longer to be 

 allowed to plead that the negligence causing the accident 

 was the negligence of a fellow-servant, if the person to blame 

 was a foreman or other person exercising superintendence, or 

 if the person injured was at the time under the orders of 

 another workman, and the injury was due to his having 

 obeyed that person's orders. (cZ) Under this statute horses 

 have been held " plant," (e) and an injured party must be 

 able to show that the horse which caused him injury was 

 defective and unfit for use ; but if there be mere surmise 

 upon this point, the pursuer's onus is not discharged.(/) 

 Where a company are necessarily in the knowledge that one 

 of their horses used by their employees is unsafe, they are 

 liable if they negligently permit it to be used, and any one 

 of the employees is injured thereby. (f/) It has also been 



(a) Wylliev. Cal. Ry. Co., 1871, 9 M. 463 ; see also Colder v. Cal. Ry. Co., 1S71, 

 9 M. 833. 



(b) Croinpton, J., in Aslncorth v. Stunning, 1861, 30 L.J., Q.B. 183. 



(c) 43 & 44 Vict. 0. 42, §§ 1, 2. 

 id) Ibid. §§ 1, 2. 



(c) JIaston V. £d. Tram. Co., 1887, 14 R. 621 ; Frascr v. Hood, 1887, 15 R. 

 178 ; Yarmouth v. France, 1887, 19 Q.B.D. 647. 



(/) M'Farlanc v. Thomson, 1884, 12 R. 232. (f/) Huston, cit. 



