Scottish Court of Session Decisions

The following complaint was presented by the Procurator-fiscal in the Sheriff-court of Lanark:—“That James Nimmo, coalmaster, residing in Slamannan, in the county of Stirling, has contravened section 10th of the Act 23 and 24 Victoria, cap. 151, by neglecting or wilfully violating the 12th General Rule provided by the said 10th section of said Act; and the said James Nimmo has contravened section 11th of the said Act, by neglecting or wilfully violating the 9th Special Rule established and enforced under said Act, particularly the said 11th section thereof, at No. 1 coal pit, Longrigg, situated in the parish of New Monklaud, and shire of Lanark, in the occupancy of James Nimmo and Company, coalmasters there, in so far as—(1) The said James Nimmo being, time hereinafter libelled, owner or agent under and as defined by said Act, particularly section 7th thereof, of said No. 1 coal pit, Longrigg, and the said coal pit being then worked, the said James Nimmo did, during the period between the 1st August 1871 and 19th August 1871, both inclusive, neglect or wilfully violate the said 12th General Rule, by having, time above libelled, neglected or wilfully failed to have an adequate brake attached to the steam-engine used at said pit for lowering and raising persons, whereby the said James Nimmo is liable to forfeit and pay a penalty not exceeding £20, specified in the 22d section of the said Act: Likeas (2) the said James Nimmo being, time hereinafter libelled, owner or agent under and as defined by said Act, particularly section 7th thereof, of said No. 1 coal pit, Longrigg, and the said coal pit being then worked, the said James Nimmo did, during the period between the 1st August 1871 and 19th August 1871, both inclusive, neglect or wilfully violate the said 9th Special Rule, then established and enforced under said Act, and particularly said 11th section thereof, at said pit, by having, time above libelled, neglected or wilfully failed to have a bottomer or signalman in said pit, or any person to perform therein the duties specified in said 9th Special Rule, whereby the said James Nimmo is liable to forfeit and pay a penalty not exceeding £20, specified in the 22d section of the said Act.”

The Sheriff-Substitute ( Logie) pronounced this judgment:—

“The Sheriff-Substitute, in respect of the evidence adduced, convicts the said James Nimmo of the offences charged, and therefore adjudges him to forfeit and pay—1st, the sura of £5 sterling of modified penalty for having neglected to have an adequate break attached to the steam engine used at No. 1 pit, Longrigg, during the period referred to in the complaint; 2d, the sum of £20 sterling of penalty for having wilfully violated the 9th Special Rule established at said pit, by not having a bottomer or signalman therein, or any person to perform the duties specified in said Special Rule during the same period; ordains instant execution by arrestment, and also execution by poinding,” &c.

“ Note.—Two penalties have been sought from the respondent in the present complaint—one for having neglected or wilfully failed to have an adequate

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brake attached to the steam-engine used at his pit, No. 1, Longrigg, during the period between 1st and 19th August 1871, and the other for having neglected or wilfully failed to have a bottomer or signalman in said pit, or any person to perform his duties during the same period.

The brake required by the 12th General Rule in section 10 of the Mines Regulation and Inspection Act, 23 and 24 Vict. c. 151, to be attached to every machine worked by steam or water power, used for lowering or raising persons, is usually fixed on the fly-wheel, and sometimes on the winding-shaft. The brake on the fly-wheel is described by the Government inspector as a strap of iron placed half-way round the wheel, and worked by means of a lever (Mr Moore's evidence, page 2 of Proof), and the lever or handle is placed in the engine-house beside the engineman, to give him control over his engine in case of emergency (M'Feat's evidence, page 31 of Proof). Two answers were given by the respondent to the want of a brake—1 st, That there was a brake on the flywheel, and that the lever had been removed by the engineman without his knowledge; and 2 d, That the engine was used both for winding and pumping, and that the pumping gearing itself acts as a brake.

With regard to the first answer, it is self-apparent that, even granting that all the component parts of a brake were at the pit at the time, so long as they were not put together so as to be in working order, and particularly while the lever or handle was detached, there was no adequate brake available to the engineman in case of emergency. 2 d, That the lever was taken off by the engineman because the brake was requiring repairs of some kind, and that this was done in the presence of the underground manger, some time before the 1st of August. 3 d, That the respondent became personally aware that the lever was detached from the brake, so as to render it utterly useless as a brake, some time before the 1st of August, and that he failed in his duty to see that it had been replaced after having given orders to have it done. According to his own statement, he gave orders to one of the enginemen some time before 1st August to have the lever or handle attached to the brake; and on a subsequent visit to the engine-house, finding that his orders had been disobeyed, he repeated it to the other engineman—both of these orders having been given prior to 1st August. That he then made no further inquiry whether the second engineman had been more obedient to his duty than the first, until he had brought an action under the Master and Servants Act against some of his colliers for desertion, when it came out in defence for them that there was no brake on the engine, in violation of the rules established at the pit. There was therefore such culpa or neglect on the part of the respondent as to leave no alternative but to convict the respondent of said offence, unless his second answer is held to meet the case.

The second plea is, that admitting there was no brake on the fly-wheel, the engine has both winding and pumping gearing, and the pumping gearing acts as an adequate brake to the winding gearing. The Sheriff-Substitute is of opinion that this defence is untenable. The Act, as already mentioned, requires that an adequate brake shall be attached to every machine which is worked by steam or water power, and is used for lowering and raising workmen. If it is attached to the machine either by being fixed to the fly-wheel or to the winding shaft, it is always there ready for use in every emergency. But even if the pumping gearing is as effectual as a brake, as the respondent and his witnesses say it is, it is only of use when the engine is pumping as well as winding. There is fully higher testimony for the procurator than that for the respondent that de facto pumping gearing is not a brake at all, and it certainly is not a brake in the sense of the Act of Parliament. Mr Moore, the Government inspector, says the pumping does not act as a brake to the winding engine (page 2 of Proof), and Mr Graham Stevenson, a gentleman of the highest character and reputation as an engineer, says he never heard of pumping gearing being made to serve the purpose of a brake, and that, in his opinion, pumping gearing is not a brake at all, and, as a rule, that the engineman has less control of his engine when it is both pumping and winding than when only winding or only pumping. It would therefore be a most dangerous precedent, and, as it appears to the Sheriff-Substitute, in direct violation of the words of the statute, if the owners of pits at which men are lowered to and raised from their work are to be allowed to disregard the rules established at their works, and to substitute something which, in certain circumstances, in their opinion does as well. In Spons' Dictionary of Engineering, page 585, a brake is defined to be a piece of mechanism for retarding or stopping motion by friction by the pressure of rubbers against the wheels, and such is the piece of machinery attached as a brake to the fly-wheel or the winding-shaft.

The Sheriff-Substitute has modified the penalty to £5, because the respondent had really provided a brake at the pit in terms of the Act, so that his offence was one of neglect in not having it in working order and attached to the fly-wheel for a length of time far beyond what was necessary for any repairs it required.

It is admitted that there was no bottomer or signalman in said pit during the period in question, and it came out in evidence that there never had been one since the pit began some three years ago. There were therefore no alleviating circumstances, and the Sheriff-Substitute has awarded the full penalty imposed by the Act. It was stated on the part of the respondent, as a good reason for not having a bottomer or signalman, that he did not employ drawers, but that the colliers in that pit drew their own coals. This, instead of being a justification for not having a bottomer, rather tells against him. If there had been a body of regular drawers engaged in drawing coals, and drawing only, it might have been supposed that these parties would soon become proficient in placing their loaded hutches on the case, giving the appointed signals to the pitheadman, and observing any defects in the signal apparatus,—in short, discharging the duties of bottomers; but it appears from the proof that in this seam of coal there were in all about forty men and boys engaged in excavating the coal, drawing the hutches to the pit bottom, and placing them upon the case. That some of the colliers drew their own coals, but others of them had boys, who acted as drawers for their fathers. Boys of twelve or fourteen years of age may in this way have been employed ignorant of the duties required of them where there was no bottomer, and who were utterly helpless if a case of emergency arose. The object in having a bottomer or signalman at the pit bottom is to have there at all times a person of skill to see the loads

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properly placed upon the case; to give the proper signals at the proper time, for the safety of the persons who bring the coals to the pit bottom; and, in so far as responsibility lies for want of a bottomer, it matters nothing whether the drawer who brings them is an experienced person directly employed by the master, or a helpless boy newly introduced by his father into the pit to assist him with his work.”

The respondent appealed.