Scottish Court of Session Decisions

The defender in this case was contractor for working certain coal and ironstone pits near Kilsyth, and the pursuer was a labourer employed in his service. The traffic between these pits was carried on by means of an incline railway worked by an endless wire rope revolving round a horizontal wheel. This wheel was covered by a number of iron plates weighing about 70 or 80 lbs. each. The pursuer had been employed by the defender to do ordinary labourer's work, such as emptying hutches, breaking stones, and burning iron ore. On the 22d April 1874 the pursuer was ordered by the defender to remove one of the plates which covered the wheel for working the railway and to put on a fresh one. The wheel was revolving at the time. While engaged in doing this his foot slipped, got entangled with the wheel, and in consequence he was so much injured that his leg had to be amputated. His master denied liability, and therefore the pursuer raised this action in the Sheriff-Court concluding for £200 damages. After proof had been led, the Sheriff-Substitute ( Sconce) assoilzied the defender, finding (6) “That the mere lifting or removal of the plate, although the wheel was revolving, was attended with no real danger or hazard, and was often done without injury to themselves by common labourers like the pursuer about the works. Any risk attending the removal was apparent, and might have been avoided with ordinary care. (7) Finds, in law, that in the circumstances foresaid there was no culpable negligence or gross carelessness, or indeed any negligence or carelessness, in the defender giving the pursuer the order foresaid; and therefore assoilzies the defender from the conclusions of the summons, and decerns.”

Upon appeal this judgment was reversed by the Sheriff ( Lee). The following is the substance of his interlocutor: “Finds (8) that the said operation of removing the one plate and substituting another while the wire rope was in motion upon the horizontal wheel was a work of a dangerous character, especially if performed by a common labourer, such as the pursuer was, without assistance or direction; and that the risk attending it was not an ordinary risk incident to the kind of employment in which the pursuer was engaged, and was not apparent to the pursuer. (9) That the defender in giving the said order took no steps to have the wheel stopped, and left the pursuer to carry it out without assistance or directions, and without using any precautions against the risk involved in lifting such a weight with the wheel revolving underneath. (10) That the pursuer being unaware of any danger, proceeded,

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without objection or demur to carry out said order, fetched the new plate to the place, and began to lift off the old one (the wheel still revolving) and was in the act of lifting it when, his right foot having slipped, his leg got entangled in the wheel, whereby the said leg was so much injured that, after removal to the Glasgow Infirmary, it was necessary to have it amputated at the middle of the thigh … (12) That the defender has failed to prove that the said injury was caused or contributed to by negligence or carelessness on the part of the pursuer. (13) That the said injury was caused by the defender employing the pursuer in a work of the dangerous character aforesaid, and culpably neglecting to take precautions for his safety: And finds, in point of law, that the defender is liable to the pursuer in damages; assesses the damages at the sum of £100 sterling; and decerns against the defender for payment to the pursuer of the said sum, in terms of the conclusions of the summons.

Note.—The Sheriff has found this case to be attended which difficulty; but after full consideration of the proof (winch he thinks was properly allowed), he has been unable to arrive at the same conclusions as the Sheriff-Substitute. He is of opinion that the proof supports the pursuer's claim. The difference between him and the Sheriff-Substitute arises upon the facts, and not upon the law. It consists mainly in this—that the Sheriff considers it proved that the work which the pursuer was ordered on the occasion in question to perform was of a dangerous character; that the risk involved in it was not a risk arising in the ordinary course of the pursuer's employment, and was not apparent to the pursuer, as it was or should have been to the defender; and that the defender was to blame in not taking any precaution to enable the pursuer to do the work in safety.

If this be a true view of the facts, the Sheriff cannot doubt as to the law applicable to the case. For the defender's allegation of contributory negligence is entirely unsupported by evidence; and his plea that the danger was equally manifest to the servant and to the master, and that the pursuer should have refused to obey the order if he had considered the work to be out of the ordinary course of his employment, is entirely displaced if the pursuer has succeeded in making out his case, viz., that he was employed as a common labourer, entirely inexperienced in the dangers of machinery in motion; and that the risk attending the removal of a heavy plate having a revolving wheel of 4 feet diameter immediately underneath was not an ordinary risk occuring in the course of his employment, and was not apparent to him.

It is well established ‘that where a master employs a servant in a work of a dangerous character he is bound to take all reasonable precautions for the safety of that workman’ (per Lord Cranworth, Chancellor, in Paterson v. Wallace & Co., 1 M'Q. 751.) The decisions of the Court of Session in O'Byrne v. Burn, July 8, 1854, 16 D. 1025, and M'Millan v. M'Millan, June 13, 1861, 23 D. 1082, afford illustrations of the observance of this rule.

The question here appears to be, whether the present case is within that rule, or is within another rule referred to by the Sheriff-Substitute—that a servant ‘is to be considered as contemplating and taking the chance of ordinary risks properly incident to the particular kind of employment in which he engages.’

It is admitted by the defender on record that the pursuer was employed as an unskilled labourer; and it appears to the Sheriff to be proved by the evidence that ‘the pursuer did not consider the work hazardous,’ that he ‘had no knowledge of machinery, or skill concerning it,’ and that he ‘did not think whether there was hazard or not.’ He had never seen the plate taken off, and, so far as appears, had never been employed to do any work of the kind before. The Sheriff is further of opinion, on the evidence, that there was danger in the work to which the pursuer was put, performed under the conditions disclosed, of that taking place which actually occurred. Whether that danger was a seen danger, equally apparent to the servant as to the master, is a separate question; but that there was, in the circumstances, danger in the work, he cannot doubt. It may be that the work in itself was of a simple character, but that is not conclusive. Walking is quite a simple operation; but walking upon a slippery floor, in close proximity to dangerous machinery, usually covered up, and where the consequence of any slip is immediate injury from the machinery, is an operation of a dangerous character,’ especially to an inexperienced person. In the present case the pursuer was sent to lift a weighty plate which usually covered the revolving wheel. He received no assistance or special directions, and the precaution of stopping the wheel was not taken. Was there here no risk? Was the slipping of a foot upon such a floor in lifting a weight of three quarters of a hundredweight an accident which could not happen without fault or carelessness on the part of the workman? And was the workman exposed to no danger by the occurrence of such an accident while the wheel was revolving immediately underneath? The Sheriff cannot doubt as to the answers to be made to these questions. He considers it to be proved that the pursuer's foot slipped into the hole where the wheel was revolving while he was in the act of lifting the plate, and also that it slipped accidently, and without fault on his part.

It only remains, therefore, to be considered whether the risk of the wheel being allowed to continue in motion ought to have been considered by the defender, or was a risk which the pursuer must be considered to have contemplated and undertaken. The Sheriff is of opinion that it should have been considered by the defender, and that he was bound to take some precaution for the pursuer's safety, and that he was bound in a special degree to consider that risk, and to use some precaution in putting a common surface labourer to execute such a piece of work under the conditions already mentioned.

The case of Crighton v. Keir and Crighton, 14 February 1863, 1 M'Ph. 407, was referred to by the defender. But it seems to the Sheriff to differ in this respect, that the danger in that case was of a nature clearly within the scope of the servant's employment, and as to which he was quite as capable of judging as his master. Such was not the case here; at least the Sheriff thinks not. He does not attach much weight to

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the evidence of the witness Cameron as to his labourers having taken off the plate while the wheel was in motion. In the first place, he does not understand that before the accident the plate required to be taken off to oil the wheel as he states; but, in the second place, it is not explained what description of labourers they were who lifted it on these occasions, or what assistance they had. It is certainly not proved that any labourer in the situation of the pursuer had ever before been employed to remove the plate under similar circumstances.

“The Sheriff has therefore held the defender liable in damages. In assessing these damages he has taken into consideration the wages the pursuer was earning, the length of time he has been out of employment, and the permanent injury he has suffered. But looking to the meagre character of the proof on this point, he cannot assess the damage at a higher amount than £100, which is nearly two years' wages at 24s. a-week.”

The defender appealed, and argued—The accident was due to the carelessness of the pursuer, for the danger was evident to any one, and that being so, he was bound to take reasonable precautions for his safety. The master could not be made liable for the rashness of the workman himself. As was laid down in the case of Cook v. Bell, Nov. 28, 1857, 20 D. 137, when a workman was engaged in a dangerous employment, knowing its nature, a master was only bound to take ordinary precaution and use ordinary safeguards, it being the duty of the workman to look to his own safety.

Authorities— Paterson v. Wallace, July 6, 1854, H. of L., 17 D. p. 16, dictum of Lord Chancellor. See also Cook v. Bell, Nov. 28, 1857, 20 D. 137; Crighton v. Keir, Feb. 14, 1863, 1 M'Ph. 407; Pollock v. Cassidy, Feb. 26, 1870, 8 M'Ph. 615; and Trail v. Small, July 4, 1873, 11 M'Ph., p. 888.

Counsel for Respondents were not called on.

At advising—