cumstances of the case and the exigencies of his position, and that the question should not be withheld from the jury, unless the evidence so conclusively establishes contributory negligence that the court would, in the exercise of a sound discretion, be compelled to set aside a verdict in the plaintiff's favor.1

It only remains to notice the case of one who places himself in the position of a co-servant by volunteering to aid a servant, in the absence and without the knowledge of the master. Such a person must for the time being be deemed to be in no better condition than a co-servant, for the purpose of having a remedy against the master. In fact, he is in a worse position, for as to him the master is under no duty whatever,- under, for example, no duty of careful selection, of the faulty co-servant. A person so interfering is in law an intruder, though his motives may have been innocent. Legislation upon this subject is referred to in a note. This legislation does not, however, affect the principle of contributory negligence, which is an inference from a legal rule frequently stated in the form of a maxim,— volenti non fit injuria. (b)

Acts which the master is not bound to do as between him and his servant. It is intended to group together under this head some propositions decided by the courts adverse to the master's responsibility. If the master has performed the duties imposed upon him by law, as to providing suitable tools, means of ingress and egress, etc., he is not liable for injury occasioned to the servant by the happening of one of the risks attendant upon the employment. The servant is assumed to have taken that into

1 Kane v. Northern Central R. R. Co., 128 U. S. 91. See also Northern Pac. R. R. Co. v. Mares, 123 Id. 710.

L. R. 14 Q. B. Div. 68. (a) The workman may "contract himself out of the Act" as to recovering compensation

2 Degg v. Midland R. R. Co., 1 H. & N. which it allows for injuries sustained, 773.

66

3 Reference should be made to important recent legislation in England materially modifying the former law. This is the so-called Employers' Liability Act of 1880,".43 & 44 Vict. c. 42. This Act is highly favorable to the workman, and, among other things, practically does away with the rule making a foreman a fellowservant with those under his directions, and disentitling the latter to recover for injuries sustained by the former's negligence. Millward v. Midland R. R. Co.,

(a) Several States of the Union have enacted similar though less comprehensive statutes, for the particulars of which the Ilaws of these States should be consulted.

and thus leave himself in the same position as before. Such a contract is not held to be void as against public policy. Griffiths v. Dudley, L. R. 9 Q. B. Div. 357. This Act does not embrace all sorts of servants, but such as are enumerated. "The Factory Acts" are also to be noted as supplying protection to the workman while engaged in various enumerated kinds of work. 3 & 4 William IV. c. 103; 7 & 8 Vict. c. 15; 41 & 42 Vict. c. 16, and 54 & 55 Vict. c. 75.

(b) See Wild v. Waygood [1892,] 1 Q. B. 783.

account in fixing the rate of wages. An instance is the breaking away of a portion of a railway engine.1

If the servant is sick, and needs medical treatment, the master is not bound to supply it. If he does do so, and sends for a physician without the servant's direction, he will be liable to the physician, and cannot charge the expense to the servant.

He is not required to certify as to the servant's character when he leaves him. If he does so, and makes defamatory statements to one who has a right to know if they are true, he will not be responsible if they are false, provided that he acts in good faith; if he knowingly makes a false statement, he will be liable in an action for defamation.

SECTION III. Rights of Third Persons against the Master. — The object of this section is, in substance, to consider the duties of a master towards "third persons." These so-called third persons may be of two principal classes, one being persons with whom the master has made a contract to do an act, and has also employed a servant as an instrument to carry out the contract; the other class being mere strangers.

I. Where the master is under a contract. In this case the master will be responsible as a contracting party to see that the agreement is performed. If he makes use of servants for this purpose, he is still bound to see that the contract is carried out, and is liable for their wilful and unauthorized acts violating the contract. An example is found in the case of a railway, where a conductor wilfully stops a train and retards the journey of the passengers.2 The same principle has been applied to acts. of violence committed by conductors, stage-drivers, and the like, upon passengers, the master being under an implied contract to treat a passenger while under his care with civility and propriety. The case accordingly is not at all analogous to that of wilful injuries inflicted by the servants of carriers upon strangers. (a)

1 Saxton v. Hawksworth, 26 L. T. N. S. 851. See also Hudson v. Ocean Steamship Co., 110 N. Y. 625.

2 Weed v. Panama R. R. Co., 17 N. Y. 362; Blackstock v. N. Y. & Erie R. R. Co., 20 N. Y. 48.

8 Goddard v. Grand Trunk R'way, 57 Me. 202; Moore v. Fitchburg Railroad,

(a) Palmeri v. Manhattan Ry. Co., 133 N. Y. 261; Dwinelle v. N. Y. Cent., &c. Ry. Co., 120 N. Y. 117; Mulligan v. N. Y. & Rockaway Beach Ry. Co., 129 N. Y. 506. A railroad company is liable to a passenger for the negligence or wrong.

4 Gray, 465; Mil. & Miss. R. R. Co. v. Finney, 10 Wis. 388; Bryant v. Rich, 106 Mass. 180. This distinction was lost sight of in Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122; but the error was rectified in Stewart r. Brooklyn R. R. Co., 90 N. Y. 588.

ful acts of the servants of a sleeping-car or parlor-car company, when done in the performance of the duties and obligations of the railroad company under its contract. Dwinelle v. N. Y. Cent. Ry. Co., supra ; Thorpe v. N. Y. Cent. Ry. Co., 76 N. Y.

II. Duties of the master towards strangers. (1) It has already been stated that a distinction is to be taken between a servant and a contractor, and the characteristics in each case have been pointed out. It still remains to consider in more detail the difference between the liability of a master and that of one who employs a contractor.

According to the present law, if an employer contracts with a person to do a piece of work which it is lawful to do, and which the employer is not under a duty to perform in a particular manner, and the contractor in turn employs sub-contractors or servants, the original employer is not liable to a third person for an injury sustained from the negligent act of the sub-contractor or servant of the contractor. The remedy in such a case is to be sought against the contractor or his subordinates, as the facts of the case may require.

This doctrine is inconsistent with some early decisions, which are accordingly overruled. The most noted of these is Bush v. Steinman.1 In that case A., being the owner of a house, contracted with B. to repair it for a fixed sum. B. made several subcontracts, and D., the servant of one of the sub-contractors, negligently deposited lime in the road in front of A.'s premises, whereby the plaintiff, E., was injured. The court held that A. was liable as being substantially the master of D., the wrongdoer. The case is not only abandoned in England, but discarded in this country.2 (a)

If, however, the contractor does not act as such, but places himself in the position of a servant for the time being, the employer will be a master and responsible. The contractor employing servants is to be regarded as a master, and liable for their acts in the same way.

There is a qualification to the rule that an employer is not liable for the acts of a contractor. The act to be done must not be unlawful or illegal. If it be of that nature, the contractor and employer will be jointly liable as wrong-doers.1 (b)

1 1 Bos. & P. 404.

2 Steel v. South Eastern Railway Co., 16 C. B. 550; Reedis v. London & N. W. R'way Co., 4 Exch. 244; Hobbit v. London & N. W. R'way Co., 254; Blake v. Ferris, 5 N. Y. 48; Pack v. Mayor, &c. 402; Penn. Co. v. Roy, 102 U. S. 451; Williams v. Pullman Car Co., 40 La. Ann. 417.

(a) Long v. Moon, 107 Mo. 334; Hackett v. The Western Union Tel. Co., 80 Wis. 187; Bibb's Adm'r v. N. & W.

of N. Y., 8 N. Y. 222; Kelly v. Mayor, &c. of N. Y., 11 N. Y. 432.

3 Sadler v. Henlock, 4 Ell. & B. 570; Holmes v. Onion, 2 C. B. N. s. 790.

4 Ellis v. Sheffield Gas Co., 2 Ell. & B. 767; Clark v. Fry, 8 Ohio St. 358. R. R. Co., 87 Va. 711; Rome, &c. Ry. Co. v. Chasteen, 88 Ala. 591; Powell v. Construction Company, 88 Tenn. 692; Charlock v. Freel, 125 N. Y. 357.

(b) If also the employer exercise control over the workmen who obey his orders,

The employer must not be under a legal duty to perform the act in a particular way. Such a duty may arise in a number of ways. It may be imposed by statute, as, for example, upon a village or city, to properly care for its streets. The corporation under such circumstances cannot shift off its legal obligation by employing a contractor to do the work in its stead. It may be regarded as a settled rule that if a duty be imposed by statute as to the use and enjoyment of property, the owner cannot escape from the duty by employing a contractor in his stead.2

The duty may be imposed by a general rule of law. An example is found in the obligation of an owner of land not to cast out, by blasting or otherwise, rubbish or stone upon his neighbor's land to his injury. The duty is summed up in a settled legal maxim that every one must so use his own as not to injure another's." & There is a difference of opinion upon the point whether the owner can escape responsibility in such a case by employing a contractor. It has been held by a divided court in New York that he can, though the decision was opposed to the earlier authorities.

The distinction between a statutory duty and a common law duty taken in these cases appears to be over subtle and without solid foundation in principle. It makes an obligation turn upon an immaterial point, — viz., how it originates, — rather than upon the intrinsic nature of the duty or obligation itself. Every legal duty, no matter how it originates, is personal, and cannot be shifted off upon others.5

In another class of cases the duty is derived from the character of the act to be done. It may have in it an element of danger to third persons. Now, if A. employs B. to do such an act, he must see that it is so performed as to cause no injury to a third person, not himself in fault. But the injurious act must be closely connected with the injury itself. If, therefore, the contractor, acting negligently, should injure a third person by means of a collateral act, that is, one not directly embraced in the original employment,

1 Storrs v. City of Utica, 17 N. Y. 104; Conrad v. Ithaca, 16 Id. 158; Detroit v. Corey, 9 Mich. 165; Requa v. City of Rochester, 45 N. Y. 129.

2 Dorrity v. Rapp, 72 N. Y. 307. It seems impossible to reconcile this case with Herrington v. Village of Lansingburgh, 110 N. Y. 145.

3 Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., Id. 163.

and over the mode of doing the work, he will be responsible for their negligent acts Reynolds v. Braithwaite, 131 Pa. St.

4 McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y. 178, followed without discussion in Ferguson v. Hubbell, 97 N. Y. 507, 510.

5 In Bower v. Peate, L. R. 1 Q. B. Div. 321, it is said that it can make no differ ence in such a case whether the obligation was imposed by statute or existed at law, p. 328.

416; Mumby v. Bowden, 25 Fla. 454; Railroad Company v. Hanning, 15 Wall. 649.

- the employer would not be liable. This view is adopted in a number of cases both in England and in this country.1 (a)

Mr. Pollock, in his work on Torts, in speaking of the duties imposed by law on the occupiers of buildings, etc., says that the duty "goes beyond the common doctrine of responsibility for servants; for the occupier cannot discharge himself by employing an independent contractor, however careful he may be in the choice of that contractor." 2

The result is that in all cases where one is under a duty, whether originating in statute or some rule of law, or even by contract, he must see that the duty is properly discharged, and he cannot absolve himself from it by delegating the performance of the duty to another, be he contractor or not. A. may assign his rights under a contract, but how can he assign his duties and escape liability? It is plain that he cannot. Neither can he delegate the discharge of them to others and escape liability. A fortiori he can neither transfer nor delegate duties imposed upon him by a general rule of law or by statute.

(2) The employment of the servant must have been voluntary. The question as to the liability of an alleged master sometimes arises where, for example, a local law requires a ship owner or master to take a licensed pilot, and he performs his duties so negligently as to injure another ship. The English law holds, as this is a compulsory service, the owner is not liable.3

The Supreme Court of the United States, sitting as an Admiralty Court, has held the owner liable, not by a rule under the law of master and servant, but under a great principle of general application that " every man should so use his own as not to injure another's." The English court departs from its rule in case of pilotage through the Suez Canal, holding that the pilotage rules there are not in a legal sense compulsory, and that the case then falls under the law of master and servant.5

4

(3) In order to make a master liable for the act of his servant, it must be embraced within the scope of the employment. The great inquiry in this connection is not what authority the servant

1 Pickard v. Smith, 10 C. B. N. s. 470, 480; Bower v. Peate, L. R. 1 Q. B. Div. 321; Tarry v. Ashton, Id. 314; Francis v. Cockrell, L. R 5 Q. B. 501, 515, 516; Dalton v. Angus, L. R. 6 App. Cases, 740; Hughes v. Percival, L. R 8 App. Cases, 443, Gorham v. Gross, 125 Mass. 232, 240.

(a) See Railroad Company v. Morey, 47 Ohio St. 207; Atlanta Ry Co. v. Kimberly, 87 Ga. 161; Curtis v. Kiley, 153