Scottish Court of Session Decisions

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Cite as: [1866] ScotLR 1_176, [1866] SLR 1_176

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SCOTTISH_SLR_Court_of_Session

Page: 176↓

Court of Session Inner House Second Division.

Friday, Feb. 23. 1866.

(Before Lord Jerviswoode.)

1 SLR 176

Wilsons

v.

Sneddons.

Subject_1Reparation
Subject_2Culpa
Subject_3Master and Servant
Subject_4Foreman.
Facts:

(1) Direction to a Jury (per Lord Jerviswoode) that a master is responsible for injuries caused to his servant through the fault of his foreman or manager, acting in that capacity; (2) Verdict for pursuers in an action for personal injuries so caused.

Headnote:

In this case, Mrs Agnes Russell or Wilson, residing in Young Street, Wishaw, and her children, were pursuers, and Thomas D. & J. Sneddon, coalmasters. Cambusnethan Collieries, Wishaw, and John Sneddon, coalmaster there, the only known partner of said company, were defenders; and the issue which was sent to trial was as follows:—

“It being admitted that the defenders are proprietors or lessees of the pit known as No. 6 pit on the Cambusnethan estates, near Wishaw: Whether, on or about the 31st day of March 1865, the deceased Andrew Wilson, the husband of the pursuer, Mrs Agnes Russell or Wilson, and the father of the other pursuers, while employed by the defenders in the shaft of said pit, was precipitated to the bottom and killed, in consequence of the breaking of the rope used for raising the workmen to the surface, from defect or insufficiency thereof, through the fault of the defenders, to the loss, injury, and damage of the pursuers?”

Damages laid as under:—To Mrs Agnes Russell or Wilson, £250. To each of James Wilson, William Wilson, Jane Wilson, and Andrina Wilson, £150.

After evidence had been led on both sides tending to explain the circumstances under which the occurrence in question had taken place,

Judgment:

Mr Guthrie Smith addressed the jury for the pursuers. He contended that because the deceased and his fellow-workman, who also met his death on the same occasion, had examined the rope before going down the shaft, that was not enough to do away with all responsibility for the consequences on the part of the defenders. Masters were bound to provide their servants with materials suitable for their work. A master was still responsible if he supplied insufficient or defective materials either personally or by his foreman or manager—( Somerville v. Gray, 1 M'Ph., 768). Even actual knowledge of the insufficiency of the material was not necessary to be brought home to the defenders. It was sufficient if they had the means of knowing and did not make use of them.

Mr Shand, for the defenders, contended that it had not been shown from the evidence that they had been neglectful of the interests of their workmen; that this occurrence had either occurred through accident, and was thus attributable neither to the fault of the defenders or of the deceased; or if there was fault anywhere, it lay with the deceased, who had himself suggested the employment of the rope in question—a rope which did not belong to the defenders, and with regard to the sufficiency of which the deceased and his fellow-labourer, being experienced and practical workmen, were perfectly capable of forming an opinion.

Lord Jerviswoode said the first thing to be

Page: 177↓

attended to by the jury was the question embraced in the terms of the issue. There was no doubt as to the deceased having met his death at the time and in the manner there stated. The only question was whether this had occurred through the fault of the defenders. If there was fault on the part of the defenders foreman, then the defenders were themselves responsible, in so far as that fault was committed by the foreman acting in that capacity. In the circumstances of the present case it was proved that he was so. If the fault had been that of a fellow-workman of the deceased, then the defenders would not have been responsible. But the question here was one with reference to proceedings at the colliery, where the defenders' foreman was superintendent. His Lordship, after a review of the evidence, went on to observe that even if the workmen had some doubts as to the sufficiency of the rope, but did not object to it, he could not say that there would be no claim arising to the pursuers on account of his death.

Mr Shand for the defenders, with reference to that portion of his Lordship's charge in which he laid down that if there was fault on the part of the foreman, though there was none on that of the defenders, still the defenders were responsible for that fault if committed by the foreman when acting as such for the defenders, asked his Lordship to direct the jury that if they were satisfied on the evidence that the defenders had used reasonable care in the appointment of a foreman, and provided for his use a sufficient rope for the operation in question, then the defenders were not in law answerable for the personal fault of the foreman in using a defective or insufficient rope not belonging to them. His Lordship declined so to direct the jury, and the defenders excepted.

Mr Shand further requested his Lordship to direct the jury:—That if they were satisfied on the evidence that the deceased Andrew Wilson used the rope in question in the knowledge that it did not belong to the defenders, and had not been provided by them, but belonged to the engineers who were fitting up the machinery at the pit, and without reasonable grounds for believing that the defenders had sanctioned its use, the defenders were not responsible in law for the result. His Lordship declined to do so, and the defenders excepted.

The jury retired, and after an absence of twenty minutes returned a unanimous verdict in favour of the pursuers, awarding damages to the extent of £175 to Mrs Wilson and of £50 to each of the children.

Counsel:

Counsel for the Pursuers— Mr Guthrie Smith and Mr R. V. Campbell. Agent— Mr Alexander Wylie, W.S.

Counsel for the Defenders— Mr Shand and Mr MacLean. Agent— Mr John Leishman, W.S.
1866