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not the rule itself. The rule, as I think, must stand upon higher and broader grounds. As is said by a distinguished jurist, ‘Exempla non restringunt regulam, sed loquuntur de casibus crebrioribus.'1 The master is not, and cannot be, liable to his servant, unless there be negligence on the part of the master in that in which he, the master, has contracted or undertaken with his servant to do." In Farwell v. Boston & Worcester Railroad Corporation,2 Shaw, C. J., says, "The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another, for the performance of specified duties and services for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services; and, in legal presumption, the compensation is adjusted accordingly." And further on in the opinion, he says, in reference to the argument that this reasoning might apply to servants employed in the same department of duty, but not to those employed in different departments, where one can in no degree control or influence. the conduct of another, "the master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety when he is employed in immediate connection with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand toward him. in the relation of a stranger, but he is one whose rights are regulated by contract, express or implied."

Such is the principle of the rule of the master's exemption from liability, as understood at the present day; and its whole foundation is, as is seen, in contract, whether we say that the servant undertakes to run all ordinary risks, or whether we put it upon the broader ground stated by Lord Cairns and Chief Justice Shaw, that there is no liability on the part of the master to his servant, unless there be negligence on the part of the master in that which he has contracted or undertaken with his servant to do.3 In the one instance, the freedom from liability is made to depend upon an implied promise by the person in

1 Donellus de Jure Civ. L. 9, c. 2, n.

2 4 Met. 49.

3 It should be noticed that this latter ground is apparently that upon which the court relied in the first case of Priestley v. Fowler.

jured to incur the risks; and, in the other, upon the absence of any implied promise of indemnity on the part of the master. It makes no difference, for the purposes of this paper, which is taken as the governing principle, because the implication in either case is made entirely from the relations of the parties which are created by or arise out of the contract of service. When one person agrees with another to do certain work, the former must be assumed to know what is the nature of the work for which he is engaged, and what are the risks attending the performance of it. When he is to do such' work together with other persons engaged by the same master, and all are to work for a common object however different their immediate duties may be, he knows, or must be assumed to know this, and to know also that the person who engages him does not undertake to do himself what is to be done by other servants. If with this knowledge the service is entered into, the parties to the transaction must be supposed, in the absence of any thing to the contrary, to have agreed to subject themselves to these conditions. And it seems that the limit of the knowledge, actual or assumed, of the servant as to his employment, is the limit also of any implied undertaking on his part as to what risks he will assume. His undertaking to incur the ordinary risks of service is implied from his knowledge, actual or presumed, of the ordinary conditions of that service; while his undertaking to incur risks which may ensue from the negligence of those who are engaged with him, is implied from his knowledge, actual or assumed, of the object for which he is engaged, and from his being aware that others engaged by the same person have certain duties to perform towards the attainment of that object, and that they are liable to be negligent in the performance of those duties. Such undertakings are terms of the contract of service, and there can be no consideration for them where there is no contract of which they may be a part.

The only case which we have found in which it has been intimated that an undertaking of this sort could be implied from the mere fact that the parties were co-workmen, is Degg v. Midland Railway Co.1 In this case, it was decided that a volunteer could not recover against a person who was the

11 H. & N. 773.

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master of the servants with whom the volunteer was working, and by the negligence of whom he was injured. Bramwell, B., in delivering the opinion of the court there, says, "But we were pressed by an expression found in the cases, that a servant undertakes, as between him and his master, to run all ordinary risks, including the negligence of a fellow-servant, gett v. Fox being cited for this purpose; and it was said that there was no such undertaking here. But, in truth, there is as much in the one case as in the other. The consideration may not be as obvious, but it is as competent to a man to agree, and as reasonable to hold that he does agree, that if allowed to assist in the work, though not paid for it, he will take care of himself from the negligence of his fellow-workmen, as it would be if he were paid for his services." But the learned Baron went on to give further and different reasons, on which he seems rather to have based his opinion, and which are in substance the same as those given by the court in the subsequent case of Potter v. Faulkner.1 This latter case was decided in the Exchequer Chamber; and, it would seem, lays down the true principle in cases of this class. The principle of Degg v. Midland Railway Co. was approved; but no reference was made in the opinion to the dictum above quoted, and the ground upon which the court go is stated with great clearness by Erle, C. J., who says: "This is the case of one who volunteers to associate himself with the defendant's servants, in the performance of his work, and that without the consent or even knowledge of the master. Such an one cannot stand in a better position than those with whom he associates himself in respect of their master's liability; he can impose no greater obligation upon the master than that to which he was subject in respect of a servant in his actual employ. And it is clear law, that the master would not have been liable, if the servants below had been injured by the negligence of the servants above. As between master and servant, the duty of the master is to take due care to employ other servants of competent skill and ordinary carefulness when he has done that, he has done his duty as between himself and his servants; and we are of opinion that the liability contended for by the plaintiff does not attach to an employer.

1 B. & S. 800.

We have considered the case of Degg v. The Midland Railway Co., and we are of opinion that it was well decided; and we affirm the principle of that judgment." This is very intelligible. When a person voluntarily associates himself with a certain class of persons who have only certain rights as against a third person, the volunteer can have no other or greater rights against such third person than those with whom he associates himself; and it is perfectly immaterial whether or not the principles which limit their rights apply or not to him.

It remains for us to ascertain how far, if at all, this principle upon which the rule of exemption is based has been affected by those cases in which it has been necessary to determine, as preliminary to its application, whether the relation of master and servant existed, and which are cited as supporting the decisions in Johnson v. Boston and Rourke v. White Moss Colliery Co. These are Wiggett v. Fox,2 Abraham v. Reynolds, and Murray V. Currie.4

In Wiggett v. Fox the question was, whether Wiggett, the plaintiff's intestate, was at the time of the accident which caused his death the servant of the defendant, a contractor, or of a sub-contractor who had selected him. It appeared from the whole evidence that the defendant paid Wiggett his wages, had the power to dismiss him, and that he worked under the superintendence of the defendant's foreman. The court were of opinion that he was the servant of the defendant, and that the principle of the rule exempting the master from liability was applicable. The reasons for considering that the relation of master and servant existed are not distinctly stated by Alderson, B., who delivered the opinion of the court; but Martin, B., in the subsequent case of Abraham v. Reynolds says, in the course of the argument in that case, that he grounded his assent to the decision in Wiggett v. Fox entirely upon the applicability of the test laid down by Crompton, J., in Sadler v. Henlock,5 to determine whether a certain person is a contractor or a servant. Such test is there said to be whether or not the defendant has control of the work: if he has, the person doing the work is his servant. Now, what was held to give control of the work in Sadler v. Henlock was the payment of wages to the workman

11 H. & N. 773.
35 H. & N. 143.

2 11 Exch. 832; 25 L. J. N. s. Exch. 188. 4 L. R. 6 C. P. 24. 5 4 E. & B. 570.

and the power to dismiss him, though there seemed to be no supervision or direction on the part of the defendant as to how the work was to be done. It is unnecessary to go into any examination here of the class of cases of which Sadler v. Henlock is one, because our only purpose at present is to discover, if possible, whether Wiggett v. Fox is in any respect inconsistent with, or in advance of, previous decisions. Of course, in applying the above test to the facts in Wiggett v. Fox, there could be but one result; for all the elements which gave control in the one case were found also in the other, and those elements form the strongest facts from which to imply a contract of service. There seems to be nothing in the opinion to justify any assumption, that mere superintendence or direction alone by the defendant would have been considered by the court as giving him sufficient control to constitute Wiggett his servant. The case, then, it would seem, was entirely consistent with all those which had preceded it, and not only involved no new principle in itself, but called for the extension of none which had been previously established.

The next case, of Abraham v. Reynolds, was as follows: The plaintiff was in the employ of Messrs. Jump & Son, who did all the defendants' carting, at so much per bale of cotton. The defendants were cotton brokers. It appeared that the plaintiff went with the servants of the defendants to the warehouse of certain parties by the name of Hutchinson, to get cotton for the defendants; that the defendants' servants lowered the bales of cotton from the warehouse to the plaintiff into a lorry; and that by the negligence of one of the defendants' servants in lowering the bales, the plaintiff was injured. It was contended, on the authority of Wiggett v. Fox, that the plaintiff was the servant of a sub-contractor or person employed by the defendants to do their work, assisting and taking part with the servants of the defendants of whose negligence he complained, and was substantially in the same position as if he had been one of the defendants' servants. The court held that the plaintiff was not the servant of the defendants: Martin and Channell, BB., on the ground that they had no control of him; and Pollock, C. B., because it did appear that it had been agreed that the work should be done by all, and because it was not plain that the wrong-doer and the party injured belonged to one and the

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