An open space is not a warehouse simply because it is used for the storage of goods.82 And an uncovered railroad goods yard is not a warehouse.83

A transit shed on a dock, taken by the postoffice for the storage of parcels during the Christmas season, is a factory, so that an employee of a firm of carriers employed by the postoffice, who is injured while at work therein, is within the act.83a

A large stabling and yard at which 600 or 700 horses were stabled, and 150 omnibuses were put up for the night, where 3 tons of fodder were usually kept, and where there was a farrier's forge and shop for shoeing the horses, in which was kept a considerable quantity of horseshoes to be used in shoeing the horses, is not a warehouse.84

11. Machinery used in the process of

are sufficiently comprehensive to cover the work of replacing the iron beams across a hatchway after the actual stowing of the goods has been completed.86 But they are not applicable to a steam winch on a ship's deck, which is being used for the purpose of loading goods from a lighter; 83 nor to gangway doors through which cargo is taken into or discharged from a ship; 88 nor to a staging outside a ship, on which the servant was standing to screw up the iron doors of a ship after the loading was completed.89

Under the factory act of 1895, with reference to machinery for loading and unloading a vessel, there were no words to include a case where a vessel moored in a river was unloading her cargo into lighters. But the factory act of 1901 clude such an operation.90 has been held to be broad enough to inUnder this

401, 76 L. J. K. B. N. S. 850, 97 L. T. N. S. 63, 9 W. C. C. 72. In this case the respond ent was a furniture dealer having two shops in different streets and also a building consisting of two stories, which he called a warehouse, in which he kept old furniture which he repaired, and also a quantity of new furniture; the respondent also kept materials for repairs in the building in large quantities. The court of appeal said that such a building might be found to be warehouse.

82 An uncovered yard used to store material for the repair of roads and drains and for other works executed by the owners is not a warehouse in the ordinary sense of the word, and therefore not a factory within the meaning of the workmen's compensation act 1897. M'Ewan v. Perth (1905) 7 Sc. Sess. Cas. 5th series (Scot.) 714.

So, a dumping ground is not a warehouse or factory, even if some of the old material is sometimes sold. Buckingham v. Fulham (1905) 69 J. P. (Eng.) 297, 53 Week. Rep. 628, 21 Times L. R. 511, 3 L. G. R. 926, 7 W. C. C. 79.

83 Tench v. Fish (1901; C. C.) 3 W. C. C. (Eng.) 140.

83a Fogarty v. Wallis [1903] 2 I. R. (Ir.) 522.

84 Johnson v. London General Omnibus Co. (1905; C. C.) 7 W. C. C. (Eng.) 83.

85 Where a ship was unloading in a dock by means of a crane on the quay hired by her owners, and a workman employed by them in unloading her was killed by the explosion of a case of percussion caps which he was placing in a basket attached to the chain of a crane for the purpose of its being hoisted out of the ship onto the quay, it was held that the accident arose out of, and in the course of, the workman's

| employment on or about machinery used in the process of unloading to a quay within the meaning of the act of 1897. Woodham v. Atlantic Transport Co. [1899] 1 Q. B. (Eng.) 15, 68 L. J. Q. B. N. S. 17, 79 L. T. N. S. 395, 47 Week. Rep. 105, 15 Times L. R. 51, 1 W. C. C. 52.

This decision was followed in another, where a workman was killed while engaged in making up sets of bags to be hoisted from the hold of a ship by means of a crane operated by a man on the quay. Lawson v. Atlantic Transport Co. (1900) 82 L. T. N. S. (Eng.) 77, 16 Times L. R. 181, 2 W. C. C. 53.

86 Stuart v. Nixon [1901] A. C. (Eng.) 79, 70 L. J. Q. B. N. S. 170, 65 J. P. 388, 49 Week. Rep. 636, 84 L. T. N. S. 65, 17 Times L. R. 156, 3 W. C. C. 1.

87 Hennessey v. McCabe [1900] 1 Q. B. (Eng.) 491, 2 W. C. C. 80. Collins, J., said: "The statute is so drawn that it is difficult to discover what it really means, and it is indeed not easy to deal with it upon the broad ground of common sense." 88 Medd v. MacIver (1899) 15 Times L. R. (Eng.) 364, 1 W. C. C. 76.

89 Durrie v. Warren (1899) 15 Times L. R. (Eng.) 365, 1 W. C. C. 78.

90 Stevens v. General Steam Nav. Co. [1903] 1 K. B. (Eng.) 890, 72 L. J. K. B. N. S. 417, 67 J. P. 415, 51 Week. Rep. 578, 88 L. T. N. S. 542, 19 Times L. R. 418, 5 W. C. C. 95. It was there held that the modification mentioned in the interpretation act 1889 includes additions; and that consequently, in the definition of a "factory" in the workmen's compensation act 1897, the reference to the factory and workshop act 1895 must be construed as if it were a reference to the provisions of § 104 of the factory and workshop act 1901, so as

12. "Machinery temporarily used for the purpose of constructing a building."

With reference to the clause of which these words form a portion, it was in one case held that an engine shed and room containing a steam engine connected with a mortar pan for mixing mortar for use on a building near at hand was a "factory" within the meaning of the workmen's compensation act.91

g.

of "engineering work."

These descriptive words have been held applicable to the employment of the driver of a water cart used to sprinkle a newly laid surface before it is rolled by a steam roller; 92 to the work of making and removing wooden moulds for cement where machinery driven by mechanical power was used in connection with the general work; 93 to the work of constructing streets in which use is made of the steam roller, although at the time of the injury the roller was not being used; 94 to work which includes the hoisting of iron girders by means of a steam winch to the top of a building to which a new to include in the definition, among other things, machinery used in the process of unloading a ship in a navigable river.

91 McNicholas v. Dawson [1899] 1 Q. B. (Eng.) 773, 68 L. J. Q. B. N. S. 470, 1 W. C. C. 80.

92 Middlemiss v. Berwickshire (1900) 2 Sc. Sess. Cas. 5th series, 392, 37 Scot. L. R. 297, Scot. L. T. 330.

93 McGregor v. Wright (1901; C. C.) W. C. C. (Eng.) 121.

3

94 Lord v. Turner (1902; C. C.) 114 L. T. Jo. (Eng.) 133, 5 W. C. C. 87.

95 Cosgrove v. Partington (1900) 17 Times L. R. (Eng.) 39, 64 J. P. 788.

96 Coles v. Anderson (1905) 69 J. P. (Eng.) 201, 21 Times L. R. 204.

97 Bennett v. Aird (1899; C. C.) 107 L. T. Jo. (Eng.) 550, 1 W. C. C. 138. It was said in this case that the laying of pipe for water, gas, or for any other purpose is ejusdem generis with the work of constructing, altering, or repairing sewers.

98 Adams v. Shaddock [1905] 2 K. B. (Eng.) 859, 54 Week. Rep. 97, 22 Times L. R. 15, 75 L. J. K. B. N. S. 7, 93 L. T. N. S. 725. In this case, a workman engaged in digging a tunnel under a railroad for the purpose of laying telephone wires was held to be engaged in the alteration of a railroad and consequently was engaged in engineering work within the meaning of the act.

99 Atkinson v. Lumb [1903] 1 K. B. (Eng.) 861, 72 L. J. K. B. N. S. 460, 67 J. P. 414, 51 Week. Rep. 516, 88 L. T. N. S. 789, 19 Times L. R. 412.

1 In Chambers v. Whitehaven Harbour Comrs. [1899] 2 Q. B. (Eng.) 132, 80 L.

2

98

97

story is being added; 95 to the work of connecting a house drain to the main sewer; 96 to the work of laying pipe for water, gas, or any other purpose; to the work of digging a tunnel under a railroad; and to the work of laying pipes in a trench to be connected with a reservoir.99 It may be that they also embrace work on a steam dredger. But they do not cover pulleys worked by a winch; nor the operation of lifting an air compresser by means of a hydraulic jack, for the purpose of taking chased from the party who had used it it away on a truck after it had been purin building a bridge; nor the construction of a hydraulic crane without the work of repairing a boiler by hand; use of any mechanical power; nor the nor the work of clearing land from natural growth thereon.

5

A lineman employed by a tramway company to repair its overhead wires is engaged in engineering work while going from one place where he had done some repairing to another place where there was repairing to be done.7

A workman engaged in repairing a T. N. S. 586, 47 Week. Rep. 533, 68 L. J. Q. B. N. S. 740, 15 Times L. R. 351, this point was referred to, but not explicitly decided, the action being held not maintainable for another reason.

2 Wrigley v. Bagley [1901] 1 K. B. (Eng.) 780, 70 L. J. K. B. N. S. 538, 65 J. P. 372, 49 Week. Rep. 472, 84 L. T. N. S. 415.

3 Gibson v. Wilson (1899) 1 Sc. Sess. Cas. 5th series, 1017, 36 Scot. L. R. 777, 7 Scot. L. T. 65.

4 Belsey v. Sadler (1899; C. C.) 1 W. C. C. (Eng.) 141.

5 A workman engaged in repairing a boiler, where the work was all done by hand and no mechanical power was being. used, was not engaged in engineering work. Cooper & Greig v. Adam (1905) 7 Sc. Sess. Cas. 5th series (Scot.) 681, relying on Wrigley v. Whittaker [1902] A. Č. (Eng.) 299, 71 L. J. K. B. N. S. 600, 66 J. P. 420, 50 Week. Rep. 656, 86 L. T. N. S. 775, 18 Times L. R. 559.

6 The work of clearing land from the natural growth thereon is not a work of construction, alteration, or repair, which is intended by the act to be termed an engineering work. Basanta v. Canadian P. R. Co. (1911) 16 B. C. 304.

7 Rogers v. Cardiff [1905] 2 K. B. (Eng.) 832, 54 Week. Rep. 35, 22 Times L. R. 9, 75 L. J. K. B. N. S. 22, 4 L. G. R. 1, 70 J. P. 9, 93 L. T. N. S. 683. The court took the view that the obligation of the corporation extended over the entire tramway, and it would not be proper to sever the two acts of repairing and try them as separate engineering works.

A workman injured while engaged in the erection of a machine of which no mechanical power is needed is not within the protection of the statute, although mechanical power was necessary to carry the parts of the machine to the floor of the building upon which the machinery was erected.9

Employment on a chaff-cutting machine which was run by a steam engine and let out to farmers is not within the act, since such a machine is not a factory nor is the operation of it an engineering

work.10

The provision in the coal mines regulation act 1887, § 75, to the effect that "in this act, unless the context otherwise requires, 'mine' includes all the shafts, levels, planes, works, tramways, and sidings, both below ground and above ground, in and adjacent to and belonging to the mine," cannot be construed in such a sense as to enable an engine driver to recover for an injury received while he was operating his engine on his employers' private railway about

of a mile from the pit mouth. The words "adjacent to and belonging to the mine" mean "physically adjacent to and belonging to the mine itself," and not merely belonging to the owner.

11

Road work done as a necessary preliminary to the operation of a mine has been held to be a "mine" within the act,

8 Tullock v. Waygood [1906] 2 K. B. (Eng.) 261, 75 L. J. K. B. N. S. 557, 95 L. T. N. S. 223.

9 Murphy v. O'Donnell (1906) 54 Week. Rep. (Eng.) 149, 8 W. C. C. 70.

10 Watkinson v. Crouch (1899; C. C.) 107 L. T. Jo. (Eng.) 328, 1 W. C. C. 137. 11 Turnbull v. Lambton Collieries Co. (1900) 82 L. T. N. S. (Eng.) 589.

12 Ellison v. Longden (1901) 18 Times L. R. (Eng.) 48.

13 See the judgment of Smith, L. J., in Francis v. Turner Bros. [1900] 1 Q. B. (Eng.) 480, 69 L. J. Q. B. N. S. 182, 64 J. P. 53, 48 Week. Rep. 228, 81 L. T. N. S. 770, 16 Times L. R. 105.

14 Where the owners of a ship moored alongside of a quay, who acted as their own stevedores, had the use of the portion of the quay alongside of which their ship lay, for the purpose of unloading the ship's cargo onto the quay, and a workman employed by them was killed through an accident arising out of, and in the course

i.

of "undertakers."

1. In the case of a factory.

Under 7 of the act of 1897, the "undertaker" in the case of a factory is the "occupier" of a factory within the meaning of the factory acts of 1878 to 1895; as the two terms are synonymous so far as the construction of this act is concerned, the terms are used interchangeably, some cases making use of one term and some of the other.

An "undertaker" with relation to a

factory is a person who occupies, and conducts his business upon, the premwhich constitute the place of work or ises where those processes are conducted "factory" within the meaning of the act, 13 Accordingly a person who, for a "dock, wharf, or quay," as those terms the time being, has the actual use of

are construed is liable as an "undertaker"

for an injury received by one of his operations with a view to which the use workmen, while engaged in any of the of the premises has been obtained. Thus, shipowners, who, while acting as their of a part of a quay for the purpose of own stevedores, have the temporary use unloading a ship, are "occupiers" of a factory and consequently "undertakers" within the meaning of the act.14 So, a person using machinery, the property of another, in the process of loading a ship from a quay, is an undertaker. 15

As a ship in a dock may be a factory, the employer who is doing work on such a ship may also be an undertaker within the meaning of the act.16 But a ship

of, his employment on the quay, the ship owners are liable as "undertakers." Merrill v. Wilson [1901] 1 K. B. (Eng.) 35, 70 L. J. K. B. N. S. 97, 65 J. P. 53, 49 Week. Rep. 161, 83 L. T. N. S. 490, 17 Times L. R. 49.

In Hainsborough v. Ralli Bros. (1902) 18 Times L. R. (Eng.) 21, it was held that the consignees of a cargo of wheat, who were also the owners of the vessel in which the wheat was carried, are the occupiers of the quay alongside of which the vessel is lying while being unloaded.

15 Carrington v. Bannister [1901] 1 K. B. (Eng.) 20, 70 L. J. K. B. N. S. 31, 83 L. T. N. S. 457, holding that, in § 23 of the factory act of 1895, the expression "such machinery," as last used in the latter part of the section, refers to the "machinery and plant" mentioned previously in clause (a), and not to the "machinery" mentioned in clause (b).

16 Persons who are in the actual use or occupation of a dock (or, semble, of a

owner is not the occupier of a dock merely because his vessel is in the dock.17

em

Stevedores were loading a vessel in a dock by means of machinery The cargo had been put into the hold, and the men employed by the stevedores were "finishing off" by slinging iron beams across the hatchway. The machinery having become entangled, one of the workmen went to disentangle it, was caught by it, and injured so that he died. Under these circumstances it was held by the House of Lords (Lord Lindley dissenting) that the stevedores were occupying a "factory," namely, the machinery, within the meaning of the act, and that the deceased was injured in the course of his employment in loading from the wharf, the process of loading not being complete till the hatchway was secured, within the meaning of those acts. Stuart v. Nixon [1901] A. C. (Eng.) 79, 70 L. J. Q. B. N. S. 170, 65 J. P. 388, 49 Week. Rep. 636, 84 L. T. N. S. 65, 17 Times

L. R. 156.

A shipbuilding firm which has sent a newly-launched ship to a public dock to have the engines for which it had contracted with another firm erected and fitted are "undertakers." Jackson v. Rodger (1899) 1 Sc. Sess. Cas. 5th series, 1053, 36 Scot. L. R. 851, 7 Scot. L. T. 76, (1900) 37 Scot. L. R. 390, 2 Sc. Sess. Cas. 5th series, 533, 7 Scot. L. T. 363.

17 Houlder Line v. Griffin [1905] A. C. (Eng.) 220, 7 W. C. C. 87, 74 L. J. K. B. N. S. 466, 92 L. T. N. S: 580, 21 Times L. R. 436, 53 Week. Rep. 609.

18 In Smith v. Standard Steam Fishing Co. [1906] 2 K. B. (Eng.) 275, 75 L. J. K. B. N. S. 640, 54 Week. Rep. 582, 95 L. T. N. S. 42, 22 Times L. R. 578, 8 W. C. C. 76, following Houlder Line v. Griffin (Eng.) the actual decision was that a carpenter engaged in repairing a trawl board of a steam trawl moored to a jetty was not entitled to compensation for injuries received while engaged in that duty. It appears from the judgments given that one of the judges based the decision upon the ground that the carpenter was not injured while on the stone structure adjacent to the water, but in the ship, which was entirely water borne, while another judge apparently based his judgment upon the ground that since the trawl was floating in the water, the owners of it could not be said to be persons having the actual use or occupation of a dock.

Compensation was denied a workman injured while replacing a shaft in a ship, in

note.

And in another case the same court held that millwrights who sent an employee onto a vessel in a dry dock to make some repairs in connection with the insulating of the refrigerators of the vessel are not the occupiers of a factory, and therefore not undertakers within the meaning of the act. Burdon v. Gregson [1906] 2 K. B. (Eng.) 283, 75 L. J. K. B. N. S. 644, 95 L. T. N. S. 45, 8 W. C. C. 76. Romer, L. J., said that the employers were not using the dock in any true sense as a dock. Houlder Line v. Griffin (Eng.) was followed by all of the judges delivering judgment.

Ship repairers, while at work on a vessel in a wet dock, are not the "occupiers" of the dock. Morgan v. Tydvil Engineering & Ship Repairing Co. (1908) 98 L. T. N. S. (Eng.) 762, 24 Times L. R. 403, 1 B. W. C. C. 78.

In Handford v. Clark [1907] 2 K. B. (Eng.) 409, 76 L. J. K. B. N. S. 958, 97 L. T. N. S. 124, 9 W. C. C. 87, compensation was denied when an employee of engine makers was injured while doing some work on the engine. Cozens-Hardy, M. R., said: "I also feel it impossible to say in any true and real sense of the word that there was any actual use or occupation of any portion of the quay by the employers in respect of the transactions which we have had before us." After referring to Smith v. Standard Steam Fishing Co. and Harrison v. Oceanic Steam Nav. Co. (Eng.) supra, the master of the rolls continued: "I do not think that it can fairly be asserted or assumed that those cases were decided simply on the ground that the ship itself did not occupy part of the factory. It was manifest to everybody-and the whole argument proceeded upon it-that the vessel in those cases was alongside the wharf or quay, or connected with the wharf or quay by a gangway or by ropes or something of that kind. And those decisions do, it seems to me, amount to this, that the mere fact that a vessel is berthed alongside a quay, and that in some sense, of course, the quay is being used for obtaining access to or from the land to the ship, is not enough to bring either the vessel itself or the portion of the quay which it so uses within the definition of 'factory' under the act."

In Low v. Abernathy (1900) 2 Sc. Sess. Cas. 5th series, 722, 37 Scot. L. R. 506, 7 Scot. L. T. 423, it was held that the mere fact that a steamship was lying in a dock while a workman employed by a firm of engineers was engaged in repairing the boilers did not make the firm "occupiers" of the dock.

A steamship company is not an "occupier" of a quay within the sense of § 7,

chinery in it are not "occupiers" of a factory so as to be undertakers within the meaning of the compensation act; 19 and it has been held that an employer is not liable, as an "undertaker," for injuries received by one of his servants in the factory of another person, while he was engaged in removing a portion of the plant which was to be transferred to the defendant's own factory.20

Persons under contract to furnish coal to vessels in a dock are not, merely because of that, occupiers of the dock.21 And the agents of a ship owned by a foreign country doing business abroad are not undertakers.22

To render the employer an "undertaker" it is not necessary that his possession of the premises should be exclusive. All that is requisite is that he subsec. 2, of the act, so as to be liable for compensation to the servant of a contractor engaged in trimming coal on the wharf, preparatory to putting it on board one of the company's vessels, which had not yet arrived, although a particular berth in the harbor was allowed the company for loading and unloading its vessels, and it had an office and a staff of servants constantly employed in the receipt and discharge of cargo, where the same berth was also used by another steamship company, which also had an office there, and when the berth was not required by either of these companies the harbor master allowed other vessels to load or discharge at the berth. Stewart v. Dublin & G. Steam Packet Co. (1902) 5 Sc. Sess. Cas. 5th series, 57, 40 Scot. L. R. 41, 10 Scot. L. T. 343.

So, in Bruce v. Henry (1900) 2 Sc. Sess. Cas. 5th series, 717, 37 Scot. L. R. 511, 7 Scot. L. T. 421, it was held that shipping agents who had contracted with the owners of a vessel lying at a dock to load her were not the "occupiers" of the dock.

19 A firm of engineers making a preliminary run for the purpose of testing machinery in a building belonging to a cold storcompany were denied to be "occupiers in." Purves v. Sterne (1900) 2 Sc. Sess. Cas. 5th series, 887, 37 Scot. L. R. 696.

In Malcom v. M'Millan (1900) 2 Sc. Sess. Cas. 5th series, 525, 37 Scot. L. R. 383, 7 Scot. L. T. 364, it was held that an iron founder was not liable to the widow of a workman who was killed by falling from a scaffold while he was doing some work in a soap factory to which he had been sent for that purpose.

A firm of boiler makers are not "undertakers" within the meaning of the act, so as to be responsible for injuries to a workman in their employ who was injured while repairing a boiler in a spinning mill belonging to another person. Cooper & Greig v. Adam (1905) 7 Sc. Sess. Cas. 5th series (Scot.) 681, relying on Wrigley v. Whittaker [1902] A. C. (Eng.) 299, 71 L. J. K. B. N. S. 600, 66 J. P. 420, 50 Week. Rep.

should be in possession so far as may be necessary for the purpose of doing the work in hand. A firm of employers engaged in painting and plumbing a ship lying in a dock, who sent employees to do the work, are occupiers of the vessel, nothwithstanding some members of the crew are in charge of the ship for the owners." 23 And persons who have entered into a contract to make pigeonholes in what is admittedly a warehouse within the act, and who have such use or occupation of the premises as is necessary for the performance of the work, which is essential to the use of the warehouse for the purposes for which it is required by the government, are the occupiers of the warehouse within the meaning of the act.24 And the occupants of a small hut on a dock, engaged in supplying horses | 656, 86 L. T. N. S. 775, 18 Times L. R. 559.

20 In Francis v. Turner Bros. [1900] 1 Q. B. (Eng.) 478, 69 L. J. Q. B. N. S. 182, 64 J. P. 53, 48 Week. Rep. 228, 81 L. T. N. S. 770, 16 Times L. R. 105, 2 W. C. C. 61, it was held that employers who send a workman on their business to the factory of a third party are not, while the workman is engaged therein, the occupiers of said factory.

21 In Stewart v. Darngavil Coal Co. (1902) 4 Sc. Sess. Cas. 5th series, 425, 39 Scot. L. R. 302, 9 Scot. L. T. 378, it was held that a coal dealer who was under contract to deliver coal to the steamers of a packet company at a particular berth, who sends the coal from his own premises to the dock when required, is not the occupier of the dock.

22 Shea v. Drolenvaux (1903) 6 W. C. C. (Eng.) 93.

23 Bartell v. Gray [1902] 1 K. B. (Eng.) 225, 71 L. J. K. B. N. S. 115, 66 J. P. 308, 50 Week. Rep. 310, 85 L. T. N. S. 658, 18 Times L. R. 70.

A similar doctrine was laid down in Jackson v. Rodger (1899) 1 Sc. Sess. Cas. 5th series, 1053, 36 Scot. L. R. 851, 7 Scot. L. T. 76.

The decision in Bartell v. Gray (Eng.) was based upon Raine v. Jobson [1901] A. C. (Eng.) 404, 70 L. J. K. B. N. S. 771, 49 Week. Rep. 705, 85 L. T. N. S. 141, 17 Times L. R. 627, 3 W. C. C. 135, the effect of which was greatly modified by later decisions. The ultimate decision in the Bartel Case is apparently in conflict with other decisions cited supra.

24 Weavings v. Kirk [1904] 1 K. B. (Eng.) 216, 73 L. J. K. B. N. S. 77, 68 J. P. 91, 52 Week. Rep. 209, 89 L. T. N. S. 577, 20 Times L. R. 152, 6 W. C. C. 95. Collins, M. R., said: "It appears to me that this question is really decided by the case of Bartell v. Gray [1902] 1 K. B. (Eng.) 225, 71 L. J. K. B. N. S. 115, 66 J. P. 308, 50 Week. Rep. 310, 85 L. T. N. S. 658, 18 Times L. R. 70. The respondents in this