Scottish Court of Session Decisions

This was an action by Joseph Sinnerton to recover damages for the death of his son John Sinnerton, who lost his life on 13th May 1885 by falling down a coal-pit near Saltcoats, belonging to Merry & Cunninghame, the defenders.

The defenders' pit was situated in a field near the shore, and some distance from a public road, but about 66 yards from a path along a line

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of railway, along which path and railway members of the public were in use to pass.

John Sinnerton was a stranger to the district. He came to it on the day of the accident, and after coming to the pit to ask for a relative there, went to the neighbouring village of Stevenston to call for him. In Stevenston he took a considerable amount of drink with some companions, and became the worse of drink. In the evening about 9 o'clock he appeared in the engine-house at the pit still the worse of drink, and told the engineman he wished work there, and also wished to stop all night, which the engineman refused to allow. Shortly after that he was found the worse of drink in the bothy at the pit, and after he had been there some time the pitmen removed him and conducted him about 150 or 160 yards away from the pit on the way to Stevenston, and directed him to the station there and to the manager's house. They then returned. A very short time afterwards he returned, and before he was seen fell down the pit. The fence at that part of the pit had been left open for about twenty minutes by a miner who came up; but part of this time was accounted for by the absence of the engineman and others when engaged in putting Sinnerton away off the ground. At the place also there was a quantity of sleepers lying piled up to a height of one and a-half to three and a-half feet, and Sinnerton ere getting into the pit must not only have got over them, but before that have gone back to the bothy round an outlying part of the engine-seat and past a large water-tank. The night was clear, and evidence was led to show that a sober man might safely have walked at the spot without falling down the pit.

The Coal Mines Regulation Act 1872 (35 and 36 Vict. cap. 76) provides by section 51, subsection 14—“The top and all entrances between the top and bottom of every working or pumping shaft shall be properly fenced, but this shall not be taken to forbid the temporary removal of the fence for the purpose of repairs or other operations if proper precautions are used.”

The pursuer relied on this Act and on the common law, and maintained that the defenders had failed to take proper precautions against such an accident.

The defenders denied liability, and pleaded that Sinnerton was a trespasser, and had contributed to the accident.

The Sheriff-Substitute ( Guthrie) pronounced this interlocutor—“Finds that on the night of the 13th May last the pursuer's son John Sinnerton fell into the shaft of defenders' No. 5 Pit at Auchinharvie Colliery, near Stevenston in Ayrshire, and was killed: Finds that the gate or fence on the south side of the pit mouth was not closed, having been left open by some one of the defenders' servants a few minutes before, and not having been immediately closed by the engineman (Wilson), whose duty it was at night to take charge of the pithead: Finds that the deceased John Sinnerton was the worse of liquor, and had gone to the pit with the intention of staying all night there, but was put away by Wilson, the engineman, and two other servants of defenders', and on account of the state he was in was conducted by them to a safe distance from the pithead, and that the deceased must have returned to the pithead without any lawful reason, but probably for the purpose of spending the night there: Finds that the pithead was sufficiently protected on the south side by a heap of prop wood, over which the deceased must have climbed: Finds, in these circumstances, that the deceased fell into the shaft and was killed while unlawfully trespassing on the defenders' premises and through his own recklessness: Therefore assoilzies the defenders and decerns.

“ Note.—I think that the unfortunate lad, for whose death his father here seeks to recover damages, must be held to have been a reckless trespasser. Even, therefore, if there were more serious fault on the part of the defenders than has been proved, I am of opinion that the pursuer could not recover damages, and that on the authority of a series of cases from Black v. Caddell, in 1804, downwards. I was strongly pressed with Lord Penzance's dicta on the subject of contributory negligence in the case of Radley v. L. and N.-W. Railway Co. But these words must not be pressed beyond their fair meaning, which is not very clear. They must be construed with reference to the case in which they were used, and they do not apply to a case such as this where recklessness is combined with trespass. For it seems to me more than clear that whatever the law might have said if the lad had met with his death when he first came to the pit on at least a plausible errand, he was a trespasser when he returned there in the dark, after being carefully warned away and removed to a safe distance, and directed on his way to Stevenston, by those who were the proper guardians of the pit.

But apart from the special elements of trespass and recklessness, I hardly think that there was fault on the defenders' side, either under the statute, if it is applicable to a case of this kind, or at common law. It must be observed that the fence had been removed in the necessary working of the pit not more than twenty minutes before the accident happened. It ought certainly to have been replaced at once by the man who came up the shaft, or by Wilson, the engineer, or his assistant. But there are two considerations which either make the fault a very trivial one or none at all. In the first place, the open part of the pit was protected by the prop-wood placed there for the convenience of the mine. In the second place, the delay in replacing the fence, so far as Wilson and Miller were concerned, was caused by their anxiety to get the deceased himself removed from a place where he had no right to be, and where he was in danger. It would be very hard if they or their employers should be held liable for a small omission of theirs, which the deceased by his foolish conduct really occasioned. It must be remembered in a case of this kind that if the defenders are liable, the men whom they employed are also primarily liable, and that the case must be judged precisely as if the claim were made against the workmen who left the gate open, or against Wilson and Miller; and it is not perhaps unfair to remark that the extraordinary increase in late years of actions of reparation for personal injuries might possibly be somewhat checked if employers, when found liable, would insist on getting relief, so far as possible, from the men actually in fault.”

The pursuer appealed to the Court of Session, and argued—It was necessary for the protection

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of the public that the pit should be properly fenced, and it was not properly fenced, as the gate was open for a long time, so that both at common law and under the Mines Regulation Act 1872 the defenders were liable in damages. The negligent act of leaving the gate open had been done by their servants, and the principle of quifacit per alium facit per se consequently applied. All the cases went to show the common law liability of proprietors to fence openings in the ground near public pathways— Black v. Caddell, Feb. 9, 1804, M. 13,905; Hislop v. Sir P. Durham, March 14, 1842, 4 D. 1168; M'Feat v. Rankine's Trustees, June 17, 1879, 6 R. 1043. The defenders were bound also by the Mines Regulation Act to have their pit properly fenced, but they had not done this; they were therefore liable— Gibb v. Crombie, July 6, 1875, 2 R. 886. Supposing a person meeting with an accident to have been negligent, if the defenders have rendered the accident possible by their negligence, the person injured or his representatives were not barred from getting damages— Griery. Stirlingshire Road Trustees, July 7, 1812, 9 R. 1069; Radley v. L. and N. W. Railway Company, Dec. 1, 1876, 1 App. Ca. 754. Sinnerton was at the place with a perfectly legitimate purpose; he went there to endeavour to get work— Whitelaw v. Moffat, Dec. 27, 1849, 12 D. 434; Reid v. Bartonshill Coal Company, June 17, 1858, 3 Macq. 266; M'Guire v. Bartonshill Coal Company, June 17, 1858, 3 Macq 300.

The defenders argued—There was here no breach of duty on the part of the defenders. The pit was properly fenced within the meaning of the Mines Regulation Act, and the mere temporary removal of the gate could not be held to be a breach of the statute. Even supposing there had been some negligence on the part of the men who ought to have seen that the gate was closed and who did not, it was not every negligence of their workmen that would subject coalmasters to a vicarious responsibility, and so make them liable for a penalty. The gate would have been shut by the workmen if their attention had not been taken up by the deceased. At common law there was no necessity for Merry & Cunninghame to fence their pit, unless it could be shown that the pit was so near a public path that anybody accidentally straying off the path was liable to fall down it. There was no such public path here. Sinnerton had caused or at least contributed to his death by his own negligence—see Balfour v. Baird & Brown, Dec. 5, 1657, 20 D. 238; Lumsden v. Russel, Feb. 1, 1856, 18 D. 468.