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New Zealand Times, Volume XXXI, Issue 4904, 9 December 1876, Page 2

The judgment of his Honor the Chief Justice, published in another column, in the case of Mcßride v. Brogdens, iB of a most important nature, -■ and deserves more than passing notice. The cause of action arose out of an accident which occurred on the Oamaru section of the Dunediri-Christchurch railway, for which the Messrs,. Brogdens are contractors. The plaintiff was in the employment of the defendants, and the injury was occasioned, while in the course of such employment, by the negligence of the defendants' servants. We do not propose in the present instance to enter into the details of the case, but simply to state broadly the principle involved. None of the issues submitted to the jury raised in express terms the question whether the negligence, the cause of the accident, was the negligence of fellow-servants of the plaintiff in the course of "a common employment; but it is on this point that the judgment of the Court is based, for 'it is clearly stated by the Chief Justice that the negligence was that of those who were proved to be fellow-servants of the plaintiff. Although at the time of the accident the plaintiff wab only a day laborer, and 'his actual daily labor had not commenced, he then being carried by the .defendants to.his daily labor, was, as the Court held, engaged about the work of the defendants. It was also held that personal interference or knowledge by the defendants must be shown, which, as they were out of the country, could not be. The cause of action could only be based on the supposition that the plaintiff was a stranger to the defendants, that he was only in the position of a person being carried gratuitously; but clearly that was not so; the evidence showed that he was in the position of a servant to the defendants, being carried as such, and not as a stranger gratuitously. The only negligence for whioh the plaintiff could hold the defendants responsible was such as a master is responsible for to his servant, not such as a carrier, though gratuitous, is responsible for to his passenger. His Honor thought, therefore, that the defendants should have leave to enter judgment. The judgments of the Court of Appeal always meet with every respect, and we have ho hesitation in saying that

in the judgment in question the law of New Zealand as to master and servant is clearly laid down. We have no wish £b quarrel with the judgment, bat must express a clear and'decided opinion that the law requires amendment. The Messrs. BEOfiDEN were perfectly justified in availing themselves of the legal defence that they were absentees from the colony; and that it being the essence of the action that personal negligence should be shown, the plaintiff was not entitled to recover; but still this is beside the question, and such a defence should be removed by legislation at the earliest opportunity. The other point raised, which also entitled the defendants to a verdict, viz., that the injury arose from negligence by a fellow-servant, is a defence which should not be available in an action of this character. It is all very well to say that it is a portion of a man's contract, that he agrees to suffer injury at the hands of a fellow-servant, waving any claim to compensation at the hands of his employers; but it is just as logical to lay down as a principle that when a master engages a servant he agrees to sufter what loss may arise from his negligence, not only to the public at large, which is at present the case,but also to fellow-servants. The case to which we have referred is one of peculiar hardship, the plaintiff being probably maimed for life, and the compensation awarded to him by a jury of his fellow-colonists being taken away by a point of law argued in the Court of Appeal. Railways and other public works are at present attracting, and will continue for many years to come to attract, a large amount of labor to this colony, and in the interests of the working man it is necessary that there should be some legislation on this subject, and that without delay. The whole law of master and servant was fully gone into by a committee of. the British House of Commons, and a most valuable report on the subject Was prepared and published. On another occasion we propose to deal with the question as a whole, and can only regret that in the present case the majesty of the law should have deprived a laboring man of that to which he was most properly entitled in equity, a term not used by us in the sense of the jurists, but as a correlative for natural justice.