i86
THE GREEN BAG
In 1825, the law of contributory negligence was ill understood and in a chaotic shape. It was not until 1837, indeed, that the courts were called upon to determine the liability of an employer for the conduct of one of his workmen toward another. Then it was that Lord Abinger decided in the case of Priestly v. Fowler (3 Meeson & Welsby i) that the butcher boy's helper injured by the negli gence of the butcher boy had no remedy against their common employer, and thus fixed the place of the fellow servant doctrine in the common law. It is unfortunate that the facts of the case should have been such as to suggest reason ing as if the word "servant" meant simply "domestic "; it is probably this circumstance which we have to thank for a doctrine founded upon so strained a legal fiction. Lord Esher, some years later, commented upon the case in this fashion : " I think it may be suggested that the law as to non -liability of masters with regard to fellow servants arose principally from the ingenuity of Lord Abinger in suggesting analogies in the case of Priestly v. Fowler." These analogies are worth quoting. "If," he says, "the owner of the carriage is therefore responsible for the sufficiency of his carriage to his servant, he is responsible for the negligence of his coachmaker, or his harness-maker, or his coach man. The footman, therefore, who rides behind the carriage may have an action against his master for a defect in the carriage owing to the negligence of the coach maker, or for a defect in the harness arising from negligence of the harness-maker for drunken ness, negligence or want of skill in the coach man; nor is there any reason why the princi ple should not, if applicable in this class of cases, extend to many others. The master, for example, would be liable for the negli gence of the chambermaid for putting him into a damp bed; for that of the upholsterer for sending in a crazy bedstead whereby he was made to fall down while asleep and injure himself; for the negligence of the cook in not properly cleaning the copper vessels
used in the kitchen; of the butcher in supply ing the family with meat of a quality injur ious to the health; of a builder for a defect in the foundation of the house, whereby it fell and injured both the master and the servant by the ruins The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself, and in most of the cases in which danger may be in curred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master." This lets us into Lord Abinger's state of mind. It mu'st be remembered that at this time the doctrine of respondent superior was well established as a part of the law of tort, and that if the butcher's boy had injured the fishmonger's helper within the scope of his employment, the butcher would surely have had to pay. But to permit house servants to sue their employer for injuries received below stairs seemed to Lord Abinger so pre posterous that he generalized broadly and freely. The modern factory system was not of his world and it is perhaps unfair to allow the case of Priestly v. Fowler to dim the luster of his reputation for economic fore sight. The fact remains, however, that at the very beginning of the era of the machine and the factory the law was laid down without reservation upon instances drawn from domestic service. And yet after all is said, it is difficult upon any principle that would find favor in the common law, to differentiate between the house servant and the factory hand. It was to be expected that the rule should be applied to every case where the status of master and servant was found. The fact is that the case was decided upon economic grounds; upon instances exceptional rather than typical; it is, perhaps, the misfortune of his posterity that Priestly was a butcher boy and not a factory hand. Since that day the fellow servant rule has been a controlling principle of the common law; it may almost be said in
