Scottish Court of Session Decisions

The pursuer appealed, and argued—The proof showed that the accident had occurred from the boy attempting to rest his arm upon the machine when he was tired with turning, and that his fingers had slipped down between the wheels while he was turning with his left hand. No one had seen any such culpable carelessness at the time of the accident as was alleged by the defenders, and in the absence of convincing evidence on that matter the boy's story of how the accident occurred must be accepted as the correct one. As to the machine itself, it was clear enough that it could be fenced so as to make it absolutely safe, and employers of young children at machinery which could be fenced, and was not so, were in a bad position for pleading contributory negligence if an accident happened. In Gemmil v. Gourock Rope Work Co., 23 D. 426—a case singularly like the present—all the circumstances as to opinion of the factory inspector, the practice of the trade, the absence of previous accidents with such machinery, and the evidence of witnesses who thought the machinery safe enough, which defenders here founded on, were present, and the Court after considering them all awarded damages against the owner of the unfenced machinery. Even assuming some negligence by the boy, it was no slight negligence that in such a case would afford a defence. A boy of ten might be expected to be rash with machinery (and indeed it was part of defenders, case that such boys were), and therefore it was the duty of the master who employed him to protect him against such rashness by fencing the machinery. The principle of Campbell v. Ord and Madison, Nov. 5, 1873, 1 R. 149, applied. See also Darby v. Duncan & Co., February 9, 1861, 23 D. 529.

Argued for defenders—The proof of great negligence, and indeed wilful disobedience to orders, was clear. The evidence on that head was strongly corroborated by the fact that there had never been such an accident before in the works, and such machines were proved to be in common use in ropeworks, and with perfect safety.

At advising—

Lord Justice-Clerk—This is a lamentable case. Where a child of this age has been maimed in this way I think I may say without impropriety that if the defenders had taken a more liberal view of the position of matters they would not have allowed a child who had been injured in their service to suffer this injury without compensation being made. But as it is, I cannot find anything in the case to lead me to differ from the judgment of both Sheriffs.

The machine used appears to have been an ordinary machine, which it has not hitherto been thought necessary to fence, and at which children of that age are accustomed to work. It was no doubt the kind of work at which a high-spirited boy would be apt to trifle with danger. But it is another question when we are asked to find the master in fault in setting a child to work at this kind of machine, where it is shown that the machine can be worked as it is with safety, and when no other manufacturers are in the habit of fencing it. It seems clear enough that the boy had attempted the same thing before, and that he had been checked for it. I think therefore the action fails, because there was no fault in the master in not fencing the machine, and because I am afraid we must hold there was fault in the boy. But I must say, in conclusion, that if any means can be devised for fencing a machine like this, which furnishes a constant opportunity to boys to put their hands into, I think it desirable that it should be done.

Lord Young—I am of the same opinion, although I cannot say the case is a clear one. I think, however, where there were already two judgments against the pursuer, both come to apparently with great care and anxiety, and one of them by the Judge by whom the evidence was taken, the case might have had an end.

The ground of fault alleged is not having the machine fenced—not that any Act of Parliament required it, but that this was a machine which ought to have been fenced because it was a dangerous machine. I think that is the ground of action—that though there is no statutory or common law obligation to fence this machine, neither is there any statutory or common law obligation to set a child of ten years old to work at it, and that if an employer chooses to do so he must have a reasonable care for the child's safety by fencing it. But on the question of liability I am of the Sheriff's opinion. After inspecting the machine he thought fencing in such cases would have been a reasonable precaution, but he says he cannot set his own judgment against what he holds the impartial evidence of the persons of skill who examined it. I agree with him. I think the weight of the evidence is that the machine is such as has been habitually used in an unfenced condition, and worked by children, and is such as the master was justified in so using. I have to express my sympathy with what your Lordship suggests, that since this accident has occurred to a mere child it would be not unreasonable to make some reparation, and I think that this case points a warning for the future. If it is the case, as the Sheriff says, that a quite practicable and inexpensive precaution might obviate the recurrence of such an accident, a second case of the kind might come up under another aspect.

Lord Craighill—I concur. I think with the Sheriff that two things, separately or in combination, are pointed at by the pursuer here as the ground of the defenders' liability. One is that the machine was unfenced. But it is proved that this machine is an ordinary machine of the kind, and that similar machines are always used in that condition. Therefore as regards the machine itself fault is not brought home to the defender.

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