Scottish Court of Session Decisions

Lord deas delivered the leading opinion.

Lord deas—This is a narrow case. But i arrive at the same result with the sheriff and the Lord Ordinary.

The advocator (defender in the Inferior Court) is a plumber and tinsmith. He has a foreman in each of the two departments of his business. But he is himself a man of skill in both departments. When personally present he does not rely upon the skill of his foremen but on his own skill. He gives the orders, and they act upon them, or cause them to be acted on. As regards the heating it was a patent invention of the advocator's own He had also invented the mode of soldering the pipes together, which resulted in the accident. That mode consisted in suspending the cylinder perpendicularly on a triangle, with a winch and chain, so that it could be lowered or raised, and the soldering effected by dipping the pipes, at its lower end, into the metal pot in Place of turning that end of the cylinder uppermost and pouring the solder from above. What peculiar advantage this plan had to compensate for its greater danger I inquired in the course of The debate, but was not informed. The proof is silent on that, point. A further part of the plan was to fill a portion of the tubes with sand, to prevent the solder from entering them; and this, again, induced the necessity of persons going under the cylinder to pick out the sand, so far as it adhered, between the tubes—a work in which Mathieson was engaged when he met his death, and which work would have been quite unnecessary had the simple plan been taken, which has since been adopted, of using metal plugs in place of sand. All the above arrangements were the advocator's own. There was nothing unlawful in them, although, so far as we see, they afforded no such important advantages as to justify an unusual risk of human life. At all events they were new, and the advocator, in adopting then, was bound to use such precautions as to exclude all risk of the apparatus giving way and killing the persons who had to work under the cylinder. He is responsible if he was careless, and he is equally responsible if his plan was simply unskilful—for no man is entitled to make experiments without the skill necessary to conduct them with safety to human life. Gross negligence is not necessary to liability.

Now, I think the plan followed here was both unskilful and careless. It is very likely that the accident occurred in the way suggested by the rewash porter to whom Procurator-Fiscal remitted:—viz., from the screw bolt which broke having been tightened more than it could bear. But as the cylinder was suspended entirely by the chain or hoop which embraced its circumference, it was necessary to screw the bolts very tight to make that chain or hoop cling fast enough to the cylinder, otherwise the hoop would have slipped upwards, leaving nothing above it to Prevent from doing so. There might have been various simple plans taken to obviate this. One, which was immediately afterwards adopted, was easy and palpable—to give the row of rivets which ran round the cylinder immediately above the hoop square heads in place of bevelled heads, and, if necessary, to I have made these heads a little thicker, so that they would prevent the hoop from slipping upwards, although it was not so tightly screwed to the cylinder as it must otherwise have boon. Another simple precaution would have been, as the Lord Ordinary observes, to have attached the ends: of the ascending to the ends of the hoop place of ayes or bands in its intermediate circumference. If the tightening of the hoop was alone to be trusted to, the sufficiency of the strength of the hoop and bolts, as well as of the lifting chain, ought to have been placed beyond all doubt. Another thing appears to me to have been easily practicable—to have had the cylinder supported from below as that it could not be moved by more accident. In place of this it is plain that very little pressure was Pressure was enough to move any one of the aside, and that, if this should happen (as unfortunately it did), the risk was greater than if there had been no blocking, because the cylinder would then come downwards with a jerk and cause a strain upon the machinery which it would not otherwise have been subjected to.

Now the advocator was aware that the cylinder in question, which was about two tons weight, was the heaviest he had over made. He saw the cylinder after the hoop was put on; he saw it on the Saturday after it had been so far raised on the triangle as to rest on the blocks. He saw it on the Monday morning, when it was further raised to allow the metal put to be put under it. He saw the sand put in by the men, and the cylinder lowered into the put, raised again about fourteen inches, and the blocks put in, in which state he left it between 9 and 10, knowing of course, that the usual picking out of the sand was the next thing to be done. He gave no directions before leaving about the blocking or anything else; and when he returned to the work, between 2 and 3 p.m., the catastrophe had occurred.

It is plain, in these circumstances, that if anybody was responsible for what occurred in the fair and ordinary working of the apparatus, it was the

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