Scottish Court of Session Decisions

The summons in this action concluded for £500 in name of damages sustained by the pursuer through the fault of the defender, “and as solatium to the pursuer in consequence of his having, on or about the 25th day of August last, 1871 years, and while in the service and employment of the defender, and while working at a machine or apparatus for making paper, sustained a severe injury to his right hand, necessitating its being amputated, and the loss of his right hand and a portion of his right arm, through the fault, negligence, or carelessness of the defender, or those for whom he is responsible, in having failed to provide the pursuer with a sufficient and complete and proper machine for his use while at said work,—the machine at which the pursuer required to work being without rollers, or having only imperfect rollers, and being otherwise defective and insufficient; and the pursuer, by and through said injury, was confined in the Glasgow Infirmary for two months, and thereafter was within the Bothwell Convalescent Home for another month, and has since been unable to work, and has also by said injury been permanently rendered unfit to follow his trade of a papermaker and earn a livelihood, and has also had to endure great bodily sufferings, and been maimed and disfigured for life; with expenses.”

The facts of the case are fully disclosed in the interlocutor of the Sheriff-Substitute.

On 18th June 1872 the Sheriff-Substitute ( Cowan) after a proof, delivered the following interlocutor:—“Having heard parties' procurators, and considered the closed record, proof adduced, and whole process—Finds, in fact, that on 25th August 1871 the pursuer, who was muchineman in the employment of the defender, had his arm caught between the felt-roll and cylinder of defender's paper-making machine, in consequence of which the pursuer's arm was amputated, and he has not since been able to obtain any employment. That the said accident was caused through the pursuer's own carelessness and inattention—(1) In not making the tail-end, by means of which he was at the time leading the paper towards the felt-roll and cylinder, in such a way that it would project beyond the end of the cylinder and felt-roll; and (2) In suffering his hand to come in contact with the felt-roll at all. That at the time of the accident the machine was, and for a fortnight had been, wrought by a wooden guide-roll placed on the same bracket as the felt-roll, and distant from the cylinder about 10 inches. That the usual mode of working said machine was by means of a brass guide-roll, the position of which was 1 foot higher than the felt-roll, and distant from the cylinder 1 3 4inches, and the purpose of which Was to bring the paper into contact at once with the hot cylinder before it reached the felt-roll, thus obtaining more drying power. That with the said brass guide-roll in position the accident to pursuer's hand would not so readily have occurred. That in so far as the accident to pursuer is attributable to the machine being at the time worked by the wooden guide-roll, and not by the brass guide-roll, this was owing to the fault either of Benjamin Stewart, the mechanic at defender's works, whose duty it was to see that all the machinery was in good working order, and to repair anything that was out of order, or of Peter Baillie, the manager, who had a general superintendence over the works, and whose duty it was, if Stewart failed to perform his work, to have seen that he did so—the brass guide-roll in the present instance having been removed owing to the journal being loose, which might have been repaired in a day's time. That the defender's works had only one paper-making machine, and said machine was wrought by one machineman and a boy under him, the only other persons who had to do with said

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machine being the mechanic and manager. Finds, further, that said machine worked well, and made good paper with the wooden guide-roll. Finds, in law, that the said accident being caused by the pursuer's own carelessness and inattention, he cannot recover damages against the defender. That the mechanic and manager in the defender's employment being fellow-servants with the pursuer, the defender is not responsible to pursuer for their fault; and in so far as the accident is attributable to fault on their part, he cannot recover against defender. Therefore assoilzies the defender from the whole conclusions of the libel, and decerns. Finds defender entitled to expenses; allows an account thereof to be given in, and remits the same, when lodged, to the Auditor of Court to tax and report.

“ Note.—There is much in this case to enlist sympathy for the pursuer, a young man of great promise and of good character, thrown aside by a painful accident from the path of life in which his steadiness and abilities seemed to promise him an assured position. On the other hand, the defender is also a young man, who has apparently not been very successful in business, as these works, which were his venture in life, he has now been obliged to stop, and he has borne honourable testimony to the good character of pursuer. These considerations, which invest this case with a peculiar interest, must be disregarded. At the time of the accident the machine was being worked by the wooden guide-roll. It made good paper, and, in the opinion of the Sheriff-Substitute, was capable of being easily and safely wrought in that way. A good deal of the evidence against this view may be accounted for by the witnesses, James Ford, James Robb, and William Robertson, never having seen a machine with any other guide-roll than the one, and, of course, when that one was out, they could not realise the working of the machine with another in a different position. The Sheriff-Substitute had the advantage after the proof of seeing the machine, and he has no doubt of the correctness of Henry Arnott's opinion (p. 55 of Proof). If the pursuer had made his tail-end so as to project beyond the end of the cylinder, there could not have been the slightest danger. But he chose to save himself trouble, and pretends that there was difficulty in doing this with a 46-inch paper, which he was then leading. Peter Baillie, however, and James Crann, who wrought the same machine for fifteen months, say that there was no such difficulty, and that it would only have made a little more broke. It is no doubt true that with the wooden roller in position the machineman required to lead the paper on to the felt-roll, but even then his proper way was to drop the tail-end on to the felt-roll, and in the accident itself there is evidence of carelessness and inattention. Had the brass guide-roll been in position there would have been less likelihood of an accident occurring—(1) because the brass guide-roll is a foot higher than the felt-roll, the heights, according to Mason's plan, being 5 feet 4 and 4 feet 4 respectively; (2) because the brass guide-roll is not covered with felt, and the felt has a greater tendency to draw in the hand once it comes in contact with it; and (3) because the machineman would not necessarily have required to lead the paper after it passed the brass guide-roll, although he might have had to do so, and in that case the same accident as did occur might just as readily have happened as on the present occasion. A good many of the witnesses say that if a man's hand had been caught at the brass guide-roll it would not be crushed, as the brass guide-roll is placed in an open socket and would at once have sprung out. This is quite a mistake on the part of these witnesses. The opening in the socket is upwards, and the pressure of the hand supposed to be caught would have fixed the guide-roll in position and prevented it coming out.

“The Sheriff-Substitute has difficulty in finding that the accident is due to the machine having been wrought with the wooden guide-roll. It cannot be said absolutely that the machine was then out of order, for this machine differs from any other that seems to be known to the witnesses, in having two modes of working, and with both it made equally good paper. When, therefore, Stewart and Baillie found the machine working with the wooden roller in, it seems to the Sheriff-Substitute to be but a venial fault to have allowed that to continue. Care and attention on the part of the machineman might be expected. But even if the brass guide-roll ought to have been at once repaired and placed in position, it was the duty, in the first instance, of the mechanic to put it right, and in the second, of the manager to see that it. was done. The defender has no practical knowledge of paper-making, and the whole charge of the work was with Baillie. It cannot be doubted that these men, Baillie and Stewart, are fellow-workmen with the pursuer. The case of Wilson v. Merry & Cunningham fixed that an under-ground manager, whose duty it was to see that there was proper ventilation in a mine, was a fellow-workman with the miners. In the present case there is but one machine at the defender's works, and the defender handed over the charge of that machine to three men, of whom one was called a manager, because, in addition to the charge of the machine, he superintended also the preparation of the pulp, and those workers who are engaged in the finishing and packing of the goods: another from his practical skill was called a mechanic; and the third was the machineman who worked the machine with the assistance of a boy. Surely it is a very simple case this of fellow-workers. The defender, to the best of his judgment, selected these men for their several positions. Though something was said in the proof about their not being strictly correct in their conduct, it came to nothing. The mechanic is just as much a fellow worker with the machineman as the men who were employed to put up the platform in the mine were fellow-workers with the miners, and the Sheriff-Substitute cannot see that there is any difference between the relative position of Baillie and the pursuer and the relative position of the underground manager at Merry & Cunningham's and the miners. The one had to see that the ventilation was good, and he failed to do so; the other had to see that the machine was working properly, and while he saw that it worked fairly and well, the most that can be said is that he failed to see that provision was made for its being wrought in another way, which might have been a little safer. In both cases the managers had a superintending duty given to them: and whether they failed in that or not, the judgment in Wilson v. Merry & Cunningham conclusively fixes that the master is not liable in reparation.”

The pursuer appealed to the Sheriff ( Fraser) who pronounced the following interlocutor:—

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Edinburgh, 23 d August 1872.—The Sheriff having considered this process, dismisses the appeal for the pursuer, adheres to the interlocutor appealed against, and decerns: Finds no expenses due from the date of the Sheriff-Substitute's interlocutor.

“Note.—It is with very considerable hesitation that the Sheriff has arrived at the above decision, and in doing so he has to state that he does not concur in all the reasons assigned by the Sheriff-Substitute for his judgment. In the first place, the Sheriff is of opinion that there was no fault on the part of the pursuer, who is proved to be a skillful, attentive, and sober workman; and, therefore, while adhering to the judgment appealed from, the Sheriff cannot concur in all his findings, nor in a great part of the note. In the next place, it is of no moment that the defender himself, who had been a cotton broker in Glasgow before he took up the trade of paper-making, was practically not acquainted with the trade. He was bound to give to his workman a reasonably safe machine, and not increase the risk and hazard by allowing any defect that could be remedied to exist. In the third place, the accident was caused by the removal of the brass guide-roll, which ought to have been in its place, and without which the machine could not be worked with safety.

The question then comes to be, Who was in fault?—and upon the evidence this must be laid to the door of Stewart, the mechanic. Of course every paper machine will get out of order now and then, and all that can be expected from an employer of labour is that he employ a mechanic or other person to do the necessary repairs. The defender in this case did employ Stewart, and it was his business to put the brass guide-roll into its place, which he did in the course of half-an-hour after the accident. He ought to have done it during the course of the previous week. But for this omission to perform his duty on the part of Stewart, the defender cannot be made liable in damages to a fellow-workman.”

The pursuer appealed to the Court of Session.