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in a house, one intended for aii elevator and the other for a stairway ; rubbish was frequently thrown down the first ; in the second the men placed their ladders to reach the upper stories ; in time this well was filled in with the stairs, and the ladders were transferred to the other well ; while ascending, a workman was injured by the throwing of rubbish down upon him.^
Under sub-section two it has been held that the employer is liable, though the superintendent, when negligent, is voluntarily assisting in manual labor.^ The superintendent need not, of necessity, have actual superintendence over the workman injured.' In another case, the plaintiff and one X. were engaged with others in loading sacks of corn into the hold of a vessel. X.*s duty was to guide with a guy-rope the beam of the crane used in lowering the sacks, and to give direction when to lower and hoist the chain. By his negligence in not using the guy-rope^ the sacks fell down the hatchway and injured the plaintiff ; but it was held that X. was " engaged in manual labor " and was not " a person having super- intendence intrusted to him."* A somewhat similar case was Kellard v, Rooke, 19 Q. B. D. 585. The plaintiff, with other work- men, was stowing bales of wool in the hold of a ship. The men were divided into gangs, with a foreman for each gang. The bales were drawn to the hatchway, and then dropped down to the work- men below. The foreman of the plaintiff's gang worked on deck and signalled the men below before a bale was dropped. By his failure to give the customary signal the plaintiff was injured by the falling of a bale. It was held that the injury was not caused by the negligence of a person who had " any superintendence in- trusted to him, whilst in the exercise of such superintendence," or by reason of the *' negligence of any person in the service of the defendant, to whose orders or direction the plaintiff was bound to conform,*' i,e,, the foreman did not come within the provisions of either sub-section two or three.
Under sub-section five there have been numerous cases before the courts. " Railway " is not confined to railways operated by railway companies, but includes a temporary railway laid down by a contractor for the purposes of the construction of wbrks.* A
1 Pegram v, Dixon, 55 L. J. Q. B. 447.
« Osborne r. Jackson, 11 Q. B. D. 619. • Ray v. Willis, 51 J. P. 519.
- Shaffers v. General Steam Navigation Company, 10 Q. B. D. 356.
• Doiighty V. Firbank, 10 Q. B. D. 358.
