Scottish Court of Session Decisions

This action was raised in the Sheriff Court of

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Lanarkshire at Hamilton, at the instance of David Wilson, miner, Motherwell, against the Wishaw Coal Company, to recover damages for bodily injuries sustained by him on the 10th of January 1882 whilst in their employment—the nature of the accident being that whilst the pursuer was proceeding along an underground plane in the defenders' mine he was knocked down by a train of hutches which was running from the bottom to the top.

The pursuer averred that although by the provisions of The Coal Mines Regulation Act 1872 (35 and 36 Vict. cap. 76) it was imperative on the defenders to provide a series of sufficient manholes at distances of not more than twenty yards from each other, yet at the date of the accident there were not a sufficient number, and those there were were in such bad order as to be useless for places of refuge.

The defenders denied that there was any insufficiency in their mine in respect of the want of manholes or otherwise. They also pleaded, inter alia, that the accident having been caused by the pursuer's own negligence they were not liable.

The proof taken was to the following effect:—The pursuer was about sixty years of age, and prior to the accident had been working in the pit for five or six months; he had worked in the pit five or six years before that, but had not worked between those times. The underground plane in question was fitted with two sets of rails, the loaded hutches descending on the one side, and by their weight raising the empty hutches which came up on the other. The hutches started on a bell being sounded at the bottom as a signal that the empty hutches were attached, and it took the hutches about three minutes to travel the distance. This plane was 360 yards long, 9 feet wide, with an average height of about 5 feet. It was the only means of access the workmen had to their working faces, and the pursuer deponed that it took stronger men than himself about seven minutes to go down. The plane had been originally divided along its length by a brick wall extending from the top to the bottom, constructed for the purpose of ventilation. At the date of the accident the wall being no longer required in connection with the ventilation of the pit, was in process of being demolished, but parts of it were still remaining. On the day of the accident the pursuer left off work at four o'clock in the afternoon, and went to the top of the plane in order to go down; he there found a train of loaded hutches, and was told by the man in charge that although he could not tell whether there had been a signal from the other end the rake was ready to start. Rather than wait until the hutches had started, the pursuer at once set off, and what happened is thus described in his evidence:—“I commenced to go down the incline. The full hutches go down the left-hand side, the empty hutches come up the right. On this occasion the full waggons were on the left-hand side. I went down the side that the empty waggons were to come up. That would be on this occasion the right side. My idea was that I was safer on the one side than the other, because I have known of the chain of the full waggons breaking, and then coming down the incline at a dreadful rate. I was a good piece down by the centre of the incline when I heard the bell wire. I think I would be forty yards or so from the bottom. When I heard the wire jingle I understood that the full waggons and the empty waggons were in motion. I just wheeled about and ran up the brae as fast as I could, looking for a refuge. The refuge I wanted was a manhole in the coal or an opening in the brick wall. I could find neither the one nor the other, and I was struck. I could not find a manhole at all. I ran maybe fifteen or sixteen yards before I was overtaken. I was overtaken by the hutches and knocked down.” The defender's overseer deponed—“The brakesman in charge of the wheel was told never to let anyone away except they left recklessly themselves. Mr Kirkwood, the manager, told him so before I went, and I have told him several times since I went. The brakesman's name is James Melville. He is still in the works, but the wheel is no longer working. His instructions were when the hutches were belled away from the top never to let any person away from the top of the brae. He was told to allow the men ten minutes to walk down. I told him to do that. He had these special instructions from me.” He fur the deponed that when on the night of the accident he visited the pursuer along with Mr Kirkwood, the manager, the pursuer had said—“I put no blame on you, manager; it was my own fault.” On the occasion in question the brakesman was not aware of the pursuer going down. There was no written regulation as to preventing miners from going down unless the line was clear.

By the Coal Mines Regulation Act 1872 (35 and 36 Vict. cap. 76) it is provided, sec. 51, rule 10—“Every underground plane on which persons travel, which is self-acting or worked by an engine, windlass, or gin, shall be provided (if exceeding thirty yards in length) with some proper means of signalling between the stopping-places and the ends of the plane, and shall be provided in every case, at intervals of not more than twenty yards, with sufficient manholes for places of refuge.”

It was proved that there were on the incline eighteen manholes, one old mine, and a stowhole. These manholes were sufficiently large to admit three persons in safety, and were cleaned on the day of the accident. No portion of the dividing wall which was left standing was more than twelve yards in length.

The Sheriff-Substitute ( Birnie) on 23d November 1882 pronounced this interlocutor:—“Finds in fact—(1) That on 10th January last the pursuer was crushed by a train of empty hutches on an incline in a pit belonging to the defenders, and at or near the part of the incline marked on the sketch No. 14 of process; (2) That he is about sixty years of age; that he had three ribs broken and was otherwise bruised; that he has not been able to work since, and that he will not again be probably able to work as a miner; (3) That the incline is 360 yards long, with a gradient of one in six, and an average height of from four feet nine inches to five feet six inches; that there is a double set of rails, the traffic being worked with a rope, the full hutches running down pulling the empty hutches up; and that the hutches run the 360 yards in from two to three minutes; (4) That at one time the two lines of rails were separated by a brick wall for the purpose of ventilation; that since a change in the plan of

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ventilation, made at least two years since, this wall has become unnecessary, and been gradually removed as the bricks were required for other purposes, and that at the time of the accident the pieces of wall were as marked on Nos. 13 and 14 of process, or nearly so; that on either side of the incline there were manholes within twenty yards of each other, but that on the left side, where the pursuer was injured, there was no manhole for a distance exceeding twenty yards; (5) That the incline was the only passage by which the pursuer and certain of the other miners could proceed to or return from their work; (6) That there was a brakesman at the top of the incline, who generally told the miners when a train was ready to start; but that there were no rules directing how the miners were to be allowed to go up and down the incline, and no signals to tell when the incline was clear of miners or not: Finds in law that the pursuer was injured through the fault of the defenders: Finds the defenders liable in damages: Assesses the same at eighty pounds: Finds the defenders liable in expenses, &c.

“ Note.—The pursuer on the afternoon of 10th January last was returning from his work down the incline referred to in the interlocutor when caught by a rake or train of empty hutches coming up the incline. He says the defenders were in fault (1) in not having sufficient manholes, (2) in leaving portions of the brick wall after they ceased to be required, and (3) in not having proper rules and signals as to the miners passing along the incline.

I am not inclined to hold that the defenders were so clearly in fault, either in regard to the manholes or the wall, as to render them liable. On one or other of the sides there were manholes within the statutory distances, and at the spot where the pursuer was injured the portions of wall were of no great continuous length, but that there was no manhole on the side where the pursuer was walking for a distance exceeding twenty yards, and that there were pieces of wall at irregular distances which prevented a miner passing from one set of rails to the other are important as increasing the danger of the incline. It seems to me that, keeping this in view, as also the length of the incline, the lowness of the roof, the speed at which the hutches ran, and that the incline was the only road by which upwards of twenty-five miners could pass to or from their work, it was the duty of the defenders to have rules and signals for their safety. The defenders argued, that having complied with the statutory provision as to manholes, they did all that could be required of them, and that the pursuer could not recover damages because he had not complained of the danger, and had gone down the incline when he knew a train of loaded hutches was ready. But compliance with the statutory rules will not protect defenders where they have failed to take reasonable precautions, and the rule as to a miner complaining of danger applies to a discovery of fire-damp, or a threatened fall in the roof, or such like,—not to an alleged danger from an arranged plan of working, on complaining as to which he would probably be told not to interfere. Nor can I think the pursuer was so far in the wrong in going down the incline when hutches were ready as to bar his claim. The evidence is that the miners generally asked the brakesman if they had time to go down; but that it was not unusual to go down after the hutches were ready, and that they were allowed to do pretty much as they pleased.”…

On appeal the Sheriff ( Clark) adhered.

“ Note.—Without calling in question the grounds upon which the Sheriff-Substitute has decided this case, and which in themselves seem sufficient justification for his interlocutor, it seems to me that the defenders were in fault in not having manholes on each side of the way through which trucks ran at a distance on both sides of not more than twenty yards. The provisions of the statute in that respect are contained in rule 10 of 35 and 36 Vict. c. 76, sec. 51—[ His Lordship here quoted the rule, which is printed above.]

Now, originally the passage in question was divided by a brick wall throughout so as plainly to form, not one, but two separate planes in the sense of the Act, in each of which planes there should have therefore been manholes at a distance of not less than twenty yards. This brick wall gradually became broken down, and was in part removed; but as appears from the plans in process, and also from the evidence, not by any means entirely so at the date of the accident. The result was that until such brick wall had been entirely removed it could not be regarded as a single plane. Furthermore, there were two lines of rail, one on each side of this brick partition, for carrying the loaded hutches down and the light hutches up simultaneously—the weighted hutches pulling up the light ones by gravitation. Within each of these separate lines of rail an iron rope worked, so that to cross from one side to the other of the foresaid passage a man would have not only to pass over the remains of the brick partition, but over the two lines of rail, and over one and in some portions over two lines of rope, and this with the risk of meeting not one but two trains of hutches proceeding in opposite directions. From this it seems to me clear that, notwithstanding the old brick wall having been allowed to fall into decay, and in part removed, the two lines of rails really formed as before two separate planes, and required each, therefore, to have manholes for itself, just as was the case while the partition still stood intact. I do not see that the provisions of the Act can be read as applicable in any other sense to a case of this kind. Now it is quite clear that the defenders had failed to provide the statutory manholes in each of the said planes. Whether originally, while the brick wall was entire, they had manholes of the required number on each side or not, it is quite clear that when the accident occurred this was not the case. The defenders having therefore failed in complying with the statutory requisites in respect of the manholes, are upon that ground alone responsible for what occurred.

The plea of contributory negligence occurs in the record, and was very strongly urged at the debate as barring the pursuer's claim, even if the defenders were admitted to have contravened the statutory provisions. But while the plea was stated on record, the statement of facts contains no specification of what the alleged contributory negligence was, and therefore the pursuer has throughout the proof been placed at the disadvantage of not knowing on what point he was

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to meet the defenders' allegation in this respect. Furthermore, it appears to me that the pursuer at the date of the accident was acting to the best of his judgment in circumstances when there might be great difference of opinion as to what was proper to be done, and when there certainly was no rule or set of rules laid down and published for his direction.”

The defenders appealed to the Court of Session. Their argument appears from the opinions infra.

At advising—