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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Callum v. North british Railway Co. [1893] ScotLR 30_427 (18 February 1893) URL: http://www.bailii.org/scot/cases/ScotCS/1893/30SLR0427.html Cite as: [1893] ScotLR 30_427, [1893] SLR 30_427 |
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Page: 427↓
[Sheriff Court at Glasgow.
In an action to recover damages for injury caused by the negligence of the defenders' servants, the defence of common employment is not applicable unless the injured person and the servants whose negligence caused the injury were not only engaged in a common employment, but were in the service of a common master.
A carter in the employment of a firm of contractors, while receiving delivery of goods at a railway station from the servants of the railway company, was injured by a bale being dropped on his leg. For the injuries thus sustained he brought an action against the railway company, alleging that the accident had been caused by the negligence of their servants.
Held that the case of Woodhead v. Gartness Mineral Company, February 10, 1877, 4 R. 409, had been overruled by the decision of the House of Lords in the English case of Johnston v. Lindsay L.R., 1891, App. Cas. 371, and that the defence of common employment could not be maintained by the railway company, in respect that the relation of master and servant did not exist between them and the pursuer.
This was an action of damages raised in the Sheriff Court at Glasgow by Robert M'Callum, a carter in the employment of Messrs Cowan & Company, contractors, Glasgow, against the North British Railway Company
The pursuer averred that he was sent on 18th November 1892 to get delivery of some esparto grass at Maryhill Station; that he went to the station in accordance with his instructions, and drew his lorry alongside the waggon containing the grass; that the
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defenders' servants began to unload the bales from the truck and place them on his lorry, while he stood on the lorry to pack them; and that in the course of transferring the bales from the truck to the lorry the defenders' servants culpably and negligently tumbled one of them on his leg, and injured him severely. The defenders pleaded, inter alia—(1) The pursuer's averments not being relevant or sufficient to sustain his pleas, the action should be dismissed with expenses. (2) The accident being a risk incidental to common employment, the defenders are entitled to absolvitor. (3) Alternatively, the accident to the pursuer having been caused by the negligence of persons with whom he was virtually a fellow servant, the defenders are entitled to absolvitor.
On 17th January 1893 the Sheriff-Substitute ( Erskine murray) repelled the defenders' pleas of irrelevancy and allowed a proof. The pursuer appealed to the First Division of the Court of Session for jury trial, and the defenders having objected to the relevancy, the case was sent to the Summar Roll.
Argued for the defenders—It was settled in Woodhead v. Gartness Mineral Company, February 10, 1877, 4 R. 469, that the defence of common employment applied to a case like the present, and Woodhead's case had been repeatedly followed in later decisions— Wingate v. Monkland Iron Company, November 8, 1884, 12 R. 91; Maguire v. Russell, June 10, 1885, 10 R. 1071; Congleton v. Angus, January 12, 1887, 14 R. 309. No doubt the doctrine of Woodhead's case had been rejected by the House of Lords in Johnstone v. Lindsay, L.R. 1891, App. Cas. 371, but that was an English case, and the decision was not intended to apply to Scots Law— ibid, opinion of Lord Herschell, p. 380; and of Lord Watson, p. 385.
Counsel for pursuer were not called on to reply on this point.
At advising—
The Court approved of the issue lodged by the pursuer for trial of the cause, and remitted to Lord Wellwood.
Counsel for the Pursuer— Sym— Gunn. Agent— Robert Stewart, S.S.C.
Counsel for the Defenders— C. S. Dickson—Deas. Agent— James Watson, S.S.C.