21 G INJURY TO SEEVAJsT WORKING WITH MASTER. 



II. L. Ca. SCO), wliorc it was decided that a servant sustaining; an injury 

 from the neoligcuce of a fellow-servant engaged in the same employ- 

 ment, cannot recover against the common master. The present case 

 is distinguishable in this important particular, that the defendant, 

 althougli engaged jointly in the work of the mine, was also a co-pro- 

 prietor, and as such one of the plaintiff's masters ; and this takes the 

 case out of the before-mentioned rule, and calls for the application of a 

 different jirinciplc. The doctrine that a servant, on entering the service 

 of an employer, takes on himself, as a risk incidental to the service, the 

 chance of injury arising from the negligence of fellow-servants, has no 

 application in the case of the negligence of an employer. Though the 

 chance of injury from the negligence of fellow-servants may be supposed 

 to enter into the calculation of a servant on undertaking the service, it 

 would be too much to say that the risk of danger from the negligence 

 of a master when engaged with him in their common work enters in 

 like manner into his speculation. 



" From the master he is entitled to expect the care and attention 

 which the superior position and presumable sense of the duty of the 

 latter ought to command. The relation of master does not the less 

 subsist because by some arrangement between the joint masters one of 

 them takes upon himself the functions of a workman. It is a fallacy 

 to suppose that on that account the character of a master is converted 

 into that of a fellow-labourer. Though engaged with the plaintiflF 

 (Ashworth) in a common employment. Walker did not the less remain 

 the master of the plaintiff and the partner of the co-defendant Stanwix. 

 This being so, it follows that Stanwix must be liable in respect of the 

 negligence through which injury has arisen to the plaintiff, as the rela- 

 tion of partner subsisted between Walker and Stanwix ; and as the 

 negligence was in a matter within the scope of a common undertaking, 

 we think that Stanwix is equally liable with Walker. That a partner 

 is liable for the negligence of his co-partner when engaged in the 

 business of the partnership is not only clear in principle, but it is 

 established by the case of Moretun v. Harden (4 B. & C. 223), in this 

 court, where the jjroprietors of a stage-coach were held liable with a 

 third for the negligence of the latter, by whom the coach had been 

 driven. Now it has never been doubted that for personal negligence 

 of the master, whereby injury is occasioned to the servant, the master 

 will be liable. Personal negligence is clearly established against 

 Walker ; and it being admitted that the defendant Stanwix was his 

 cn-])roprietor and partner, the latter must be held to be jointly respon- 

 sil>le in respect of such negligence, and is therefore liable in this action " 

 {Ashicoilh V. Stanwix and Walker, 30 L. J. Q. B. 183). 



