211 SERVANT KILLED BY NECLIGENCE OF ANOTHER, 



]iim out at a profit, and ho docs po, and gets the profit ; then he should 

 lie liable.'' In re})ly to the argument of counsel that where the plaintiff 

 selects his man he takes the risk of his not possessing skill, industr}', 

 and g-ood conduct, his lordship added : " Suppose you send a valuable 

 horse to a smith, and say, ' Do not trust this horse to any clumsy 

 hands, but shoe him yourself, or let your foreman shoe him,' and the 

 foreman does shoe him and pierces his foot, is not the smith liable ? " 

 Andpej' CocJcbum C.J. : " Although where a man selects a servant, the 

 master may be relieved from responsibility as to incompetency, that 

 will not relieve him from liability as to negligence" (26 L.J. C. P. 261). 



If a sei'vant, in this case a general manager, he possessed of a Iwrse and 

 gig of his own (which were kept at the defendant's expense), and while 

 using them to collect debts on his master's account with his master's 

 acquiescence, cause a collision and damage hg his negligent driving, the 

 master is liable for the damage {Patten v. Rea). Willcs J. observed 

 that the defendant's argument " seemed a contradiction of the doctrine 

 laid down in Turhcrville v. Stampe." And per Curiam, in an action for 

 damage done by the negligent driving of the defendant's servant, the 

 proper question to leave to the jury is, whether at the time of the act 

 complained of the servant was driving on his master's business and 

 with his authority {ib.) (1 Ld. Eaym. 264). 



The 77th sec. of Stat. 5 & 6 Will. IV. c. 50, provides that a person 

 mag act as the driver of two carts on a highwag, provided that the carts 

 shall not be drawn by more than one horse each, and the horse of the 

 hinder cart shall be attached by a rein, not exceeding four feet, to the 

 back of the foremost cart ; and it was held by the Court of Queen's 

 Bench, in Robertson (appel.) v. Burlcett (resp.), that the provision was 

 substantially complied with, when a driver seated in the first cart had 

 a rope attached to the head of the last horse passed over the back, and 

 fastened to the body of the first cart about the centre, and the last 

 horse's head drawn close up to the back of the first cart, so that he 

 had full command of both horses. Erie J. styled the appeal '• a pesti- 

 lent perversion of a useful statute." 



^Y]lere a servant in the ordinarg course of his emplogment is Jcilled bg 

 the negligence of one ivho is not his emploger, the widow may maintain 

 an action against the latter ( Vose Adx. v. The Lancashire and Yorkshire 

 Railwag Compang). According to Tarrant v. ^Yed)b, a master is not 

 generallg responsible for an injnrg to a servant, from the negligence of a 

 felloiv -servant ; but that rule is subject to this qualification, that the 

 master uses reasonable care in the selection of the servant. And jjer 

 Jervis C.J. : "The master may be liable where he is personally guilty of 

 negligence ; but certainly not wiiere he does his best to get competent 



