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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Flynn v. Hood [1883] ScotLR 20_503 (14 March 1883) URL: http://www.bailii.org/scot/cases/ScotCS/1883/20SLR0503.html Cite as: [1883] ScotLR 20_503, [1883] SLR 20_503 |
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Page: 503↓
Form of issue adjusted for the trial of an action of damages by a miner against a coalmaster for injuries alleged to have been caused through the defective condition of a railway in the defender's mine.
This was an action of damages at the instance of Michael Flynn, formerly a miner, for injuries received by him while in the employment of the defender Archibald Hood, coal-master, through the alleged fault of the defender.
The pursuer had been a “drawer” in the defender's pit at Rosewell, and on the occasion of the accident which led to this action had been walking down an inclined road or railway in the mine, taking with him a loaded hutch. He averred that, according to the practice of the mine, he had been walking in front of the hutch leaning his back against it to prevent it from moving too rapidly, and pressing his feet against the sleepers in the road; that when he was doing so one of the sleepers which was loose slid away from his foot, as a result of which he fell before the hutch and received injuries which necessitated the amputation of a leg. Further, he averred that the accident occurred through the defective condition of the road, arising from bad construction and repair, it being wanting in sufficient sleepers and in ballasting, as well as in regular attention to the condition of the sleepers, many of which were loose. He also averred that the defender had failed to supply materials sufficient for the proper construction and maintenance of the road, and that he and his foreman were aware of its bad condition.
The defence was a denial of fault on the part of the defender or anyone for whom he was responsible. The defender averred that he took no personal charge of the management of the pit, but delegated it to competent persons, and that he had supplied all necessary materials for the construction and repair of all the roads in the pit. He averred that if there was any fault other than that of the pursuer himself, it was that of a fellow-workman with him. In any view, he pleaded contributory negligence on the pursuer's part.
The Lord Ordinary ( Fraser) adjusted this issue for the trial of the cause —“Whether, on or about the 1st day of August 1881, the pursuer, while in the employment of the defender as a miner in a pit at Whitehill belonging to him, was struck by a hutch which he was guiding along a railway in said pit, and injured, in consequence of the defective condition of said railway, through the fault of the defender, to his loss, injury and damage.”
The defender moved the Court to vary the issue by adding after the words “the fault of the defender” the words “in not supplying sufficient sleepers and ballast therefor,” so as to make the issue read:—“Whether, on or about the 1st day of August 1881, the pursuer, while in the employment of the defender as a miner in a pit at Whitehill belonging to him, was struck by a hutch which he was guiding along a railway in said pit, and injured, in consequence of the defective condition of said railway, through the fault of the defender in not supplying sufficient sleepers and ballast therefor, to his loss, injury and damage.”
The Court approved of the issue as adjusted by the Lord Ordinary.
Counsel for Pursuer— D.-F. Macdonald, Q.C.— James Reid. Agent— R. H. Miller, S.S.C.
Counsel for Defender— Dickson. Agent— T. F. Weir, S.S.C.
