Scottish Court of Session Decisions

Lord President—The question in this case is whether the death of Hunter was caused by the fault of the defender, and the ground of fault which is suggested in the issue is the want of a checkblock, or other sufficient means for stopping the hutch which the deceased was propelling along the chamber leading into the main road or incline. Now, the jury having found for the pursuer, it has been contended by the defender that, on two grounds mainly, the verdict is against evidence. In the first place, it is contended that there was no fault on the part of the defender, or evidence of any negligence on his part, leading to the death of the deceased. And, in the second place, it is contended that, supposing there was some negligence on the part of the defender, there was also some negligence or recklessness on the part of the deceased, contributing materially to bring about his death. I am not for disturbing the verdict on either ground. I think there was evidence of negligence to go to the jury, evidence of a kind suitable for their consideration. The work in which Hunter was engaged involved considerable risk. That was so from the very nature of the work, which fell sometimes to be performed by men accustomed to it, and sometimes by persons coming newly to it and knowing nothing of the way of working. Looking to the position of the pit, and the way of working, it is difficult to say that it was not part of the duty of the master to provide some precautions for preventing this accident. Various precautions were suggested; the jury had them before them, and they have come to the conclusion that there was some negligence on the part of the defenders. It is not necessary for the Court to say whether they agree exactly with the jury; but, it being a jury question, if I were doubtful, I should hold that to be a sufficient reason for not granting the rule.

As to the other point, that the deceased contributed in some material way to produce his own death, we must assume, and, indeed, it was conceded by the defender, that, so far as the law is concerned, the case was quite properly left in the hands of the jury by the presiding judge, with directions in accordance with Macnaughton. The jury were told that, oven assuming there was some negligence on the part of the defender, yet if it was

Page: 150↓