Page: 92↓
These were two actions brought by persons who when in the employment of the defenders on 4th May 1882 were injured by the fall of a pile of old building material belonging to the defenders at Advocate's Close, Edinburgh. The pursuers alleged that the fall of this pile was caused by the fault of the defenders or those for whom they were responsible. The case averred by them was one of fault against the defenders for which previous to the Employers Liability Act 1880 they would have been responsible at common law, and also a case of fault against them as being responsible for the negligence of fellow-servants of the pursuers (certain foremen builders of the defenders) for whom the defenders were alleged to be responsible under that Act.
The pursuers did not remove the actions to the Court of Session under section 6 of the statute, but allowed the cases to remain in the Sheriff Court until an order for proof was pronounced. They then appealed to the Second Division for jury trial under the 40th section of the Judicature Act. They proposed this issue for the trial of each action:—“Whether on or about the 4th day of May 1882, and in or near Advocate's Close, Edinburgh, the pursuer while in the employment of the defenders was injured in his person through the fault of the defenders, to the loss, injury, and damage of the pursuer?”
The defenders objected to the cases being tried under a single issue in each case, and maintained that as the actions were laid both at common law and under the Employers Liability Act there ought to be in each case, in addition to the issue proposed, another issue so framed as to raise the question whether there was a cause of action of the kind for which the statute gave a remedy.
The Court, without calling on pursuers' counsel, approved of the issue proposed by the pursuers, on the ground that a single issue was quite fitted for the trial of the case, which depended upon the application to the facts of the case of the common law as amended by statute.
Counsel for Pursuers— Rhind— Sym. Agent— Thomas M'Naught, .S.S.C.
Counsel for Defenders— Trayner— Salvesen. Agents— Drummond & Reid, W.S.