S12 



NEGLIGENCE IN THE USE OF HORSES, ETC. 



If servant 

 Tindjctively 

 strikes a 

 horse with 

 his whip. 



Instructions 

 of master, if 



immaterial. 



and to do tliat which he thought best to suit the interest of 

 his employers, and so to interfere with the trade and busi- 

 ness of the other omnibus, the defendants were responsible; 

 that the instructions given to the defendants' driver by 

 them were immaterial if he did not pursue them ; but that, 

 if the act of the defendants' servant was an act of his own, 

 and in order to effect a purpose of his own, the defendants 

 were not responsible." This direction was held to be 

 right by all the Judges with the exception of Mr. Justice 

 "VVightman. 



Mr. Justice Williams in the course of the argument said, 

 " If a driver in a moment of passion vindictively strikes a 

 horse with a whip, that would not be an act done in the 

 course of his employment ; but in this case the servant was 

 pursuing the purpose for which he was employed, viz., to 

 drive the defendants' omnibus. Suppose a master told 

 his servant not to drive when he was drunk, but he never- 

 theless did so, would not the master be responsible ? " And 

 in his judgment he said : " If a master employs a servant 

 to drive and manage a carriage, the master is responsible 

 for any misconduct of the servant in driving and managing 

 it, which must be considered as having resulted from the 

 performance of the duty entrusted to him, and especially if 

 he was acting for his master's benefit and not for any 

 purpose of his own." 



Mr. Justice "VVilles said, with reference to the question 

 whether the injury was done by the driver in the course of 

 his employment, " It may be said that it was no part of 

 the duty of the defendants' servant to obstruct the plaintiff's 

 omnibus, and moreover the servant had distinct instructions 

 not to obstruct any omnibus whatever. In my opinion, 

 those instructions are immaterial. If disobeyed, the law 

 casts upon the master a liability for the act of his servant 

 in the course of his employment ; and the law is not so 

 futile as to allow a master, by giving secret instructions to 

 his servant, to discharge himself from liability. Therefore, 

 I consider it immaterial that the defendants directed their 

 servant not to do the act. Suppose a master told his 

 servant not to break the law, would that exempt the 

 master from responsibility for an unlawful act done by his 

 servant in the course of his employment ? The act of 

 driving as he did is not inconsistent with his employment, 

 when explained by his desire to get before the other omni- 

 bus," which desire was prompted by the fact " that he was 

 employed not only to drive the omnibus, which alone would 



