NEGLIGENT DRIVING BY A SERVANT. 323 



invited by a servant, or one who volunteers to assist a 

 servant in his work, while engaged in giving such assist- 

 ance, bears the same relation to the master as a servant, 

 and is subject to the same disabilities in this respect («). 



But in all cases the master is bound to use due care in Master bound 

 the selection of competent servants, and is liable for negli- *° "^? ^^^ 



, . . "^ . . , 1 • .1 care m selec- 



gence in employing incompetent persons to his servants and tion of ser- 

 to those acting as such. Nevertheless he is not bound to fants. 

 warrant the competency of his servants ; and in an action 

 against him for an injury done by one of his servants to 

 another, the question for the jury is, not whether the servant 

 was incompetent, but whether the master exercised due care 

 in employing him (y). 



The usual terms on which a cab proprietor lets a cab to Liability of 

 a driver are, that the owner feeds the horse, and exercises '^ ij^yer"^ °^ 

 no control over the driver after he leaves the yard, for 

 which the driver pays a fixed sum a day. Under such cir- 

 cumstances the relation between the parties infer se is that 

 of bailor and bailee ; and the proprietor is liable to the 

 driver if he do not take reasonable precautions to provide a 

 horse reasonably fit for the purpose, and injury is thereby 

 caused to the driver. 



This was the conclusion arrived at by Byles and 

 Grove, JJ., Willes, J., dissenting, upon motion to enter 

 judgment for the defendant after verdict for the plaintiff in 

 an action by the driver against the proprietor of a cab for 

 injury sustained by reason of the former having been 

 supplied with a vicious and unmanageable horse (s). This 

 judgment was appealed from, but the Judges in the 

 Exchequer Chamber being divided in opinion delivered no 

 judgment on the point of law, though they ordered a new 

 trial in order that the question whether the plaintiff had 

 taken on himself the risk with respect to the horse's fitness 

 might be submitted to a jury (a). On the new trial coming 

 on for hearing the jury found that there had been personal 

 negligence on the part of the defendant in the selection of 

 the horse ; and on this a third trial was refused (i). So 



not extend to domestic or menial (z) Fowler y. Loch, Jj. H.,! G. 7. 



servants. 272 ; 41 L. J., C. P. 99 ; 26 L. T., 



(x) Potter V. Faulkner, 31 L. J., N. S. 476. 

 a. B. 30. {a) L. E., 9 C. P. 751, n. ; 43 



{y) Tarrant v. Weih, lb L. J., L. J., C. P. 394, u. ; 30 L. T., N. S. 



C. P. 261 ; Waller y. South Eastern 800. 



Mail. Co., 32 L. J., Ex. 205; Ball [b) L. E., 10 C. P. 90; 43 L. J., 



V. Johnson, 13 W. R. 411 ; Wiggett C. P. 394, n. ; 31 L. T., N. S. 844 ; 



V. Fox, 25 L. J., Ex. 188. 23 W. R. 415. 



Y 2 



