TNJUEY TO SEEYANT WOrjaKG WITH MASTEE. 215 



j"»orsons. He is not bound to warrant their competency." So if one 

 servant overloads a cart, whereby it breaks down and throws plaintiff 

 (another servant), no action lies against the master {Priestley v. Fowler). 



The above case was confirmed by the House of Lords in Bartons 

 Hill Coal Comjxuiij v. Reid, which decided tliat a master is not liable 

 to his servant for injury done to him by the negligence of a fellow- 

 servant employed in the same work, the injury not having arisen 

 from the unfitness of the latter; but to exclude the master's liability, 

 there must not only be common service, but the fellow-servants must 

 be employed in the same work. Where persons in common service 

 are engaged in diff'erent departments of labour, the master is liable 

 for an injury committed through negligence by one servant upon 

 another, unless the risk of such an injury was fairly to be considered 

 as incidental to the particular employment of the injured party ; and 

 the proper test of the latter consideration is, what risk the injured 

 party must have known he was exposed to from the nature of the 

 employment he undertook ; and notwithstanding some occasional dicta 

 of judges of the Court of Session, the English and Scotch laws arc 

 identical on this subject {ib.). 



No contract on part of master not to expose servant to great risJc. — 

 From the mere relation of master and servant, no contract can be implied 

 on the part of the master to take due and ordinary care not to expose 

 the servant to extraordinary danger and risk in his service. And per 

 Follocic C.B. : " This is an attempt to nullify the decision of the 

 Court in Priestley v. Fowler (3 M. & "VV. 1 ; 7 L. J. N. S. Ex. 42), 

 and to enlarge the case in which persons in the relation of master or 

 employer are to be made responsible for injuries incurred by those in . 

 their employment, who are in general much more able to judge of the 

 probability and extent of the risk they run in the service than those 

 who employ them. I think it highly expedient that the rule laid down 

 in Fowler v. Priestley should be maintained and not eaten up by excep- 

 tions " {Riley Aclmx. v. Baxendale, 30 L, J. Ex. 87). 



Lijury to servant worldng with master. — When, by the negligence of 

 the master, an injury is caused to a servant in the course of his employ- 

 ment, the master is liable, although he was employed as a workman at 

 the time, and was working with the servant ; and if one member of a 

 partnership is guilty of such an act of negligence, and if it occurs in 

 a matter within the scope of the common undertaking of the partner- 

 ship, all the partners will be liable for the injury caused to the servant. 

 And j;«r Curiam: " H the defendant had been simply the fellow workman 

 of the plaintiff, the case would have come within the principle and 

 would be quite analogous to Barlonshill Coal Company v. Reid (3 Macq. 



