Scottish Court of Session Decisions

This was an action raised in the Sheriff Court of Glasgow by Mrs Roseann Stevenson or Magee, Lennoxtown, widow of Patrick Magee, ploughman, Lennoxtown, against Messrs Dalglish, Falconer & Co. (Limited), calico printers at Lennox Mills, Lennoxtown. The action was for damages and in name of solatium for the death of the pursuer's son John Magee, a youth of 18 years of age, who was in the employment of the defenders, and who while in their service met with an accident which resulted in his death. Besides being brought at common law, the action was laid alternatively under the Employers Liability Act of 1880, and the prayer of the petition contained, in addition to a conclusion for £1000, a conclusion praying that the defenders should be found liable in payment of a sum of £70, 4s., or such other sum as should be found due as compensation under the said Act for the injury.

The pursuer averred, inter alia, that the accident occurred through the deceased's clothing coming in contact with a rapidly revolving shaft, by which means he was drawn into the machinery and crushed to death. She further alleged that the said shaft was “mill gearing” within the term of the Factory and Workshops Act of 1878, and that being so, it ought to have been covered or boxed in; that during a portion of the time that the deceased was in the defenders' employment the said shaft was partially fenced in with a square wooden box, but that about a week before the accident in question occurred the fencing was removed and the shaft again exposed, in which condition it remained down to the date of the accident. The pursuer also set forth that the defenders had incurred the penalty of £100 provided by the said Factory and Workshops Act for contravention of its provisions.

The defenders averred that the accident occurred through the deceased failing to follow the instructions given to him by them or their foreman; that the deceased had charge of the fencing over the shaft as a part of the machinery under his care, and that he ought to have reported to them or their foreman if the shaft was at any time unfenced. They denied that they removed or gave instructions for the removal of the fencing, or that they were aware that it had been removed.

The pursuer pleaded, that as the deceased had lost his life through the fault or neglect of the defenders, or those for whom they are responsible, the pursuer as his mother was entitled to decree as concluded for. “(2) The defenders having contravened the provisions of the Factories and Workshops Act, are liable in terms of these provisions. (3) The deceased having, while employed as a workman in the service of the defenders, been injured by reason of the negligence of the defenders, or of a person for whom they are reponsible under the Employers Liability Act 1880, the pursuer is entitled to decree in terms of the second conclusion of the petition.”

The defenders denied fault, and pleaded, that as the deceased had brought about his own death by disobedience, neglect, or rashness, they were not liable therefor, or in compensation either under the Factory and Workshops Act of 1878 or the Employers Liability Act of 1880, or at common law. “(3) In any event, pursuer is not entitled, to recover from defenders any penalty incurred under the Factory and Workshops Act 1878 under this action.”

The Sheriff-Substitute having allowed a proof, the pursuer appealed for jury trial. She lodged this issue—“Whether on or about the 26th September 1883 the pursuer's son John Magee, while in the employment of the defenders in the starching and mangling room of their factory at Lennox Mills, Lennoxtown, was caught by an unfenced horizontal unpolished revolving shaft, and killed, through the fault of the defenders, to the loss, injury, and damage of the pursuer. Damages laid at common law at £1000, or under the Employers Liability Act at £70, 6s.”

The defenders objected to the proposed issue on the ground that it did not exhaust the cause, and in particular that although in the condescendence a sum of £100 was claimed as a penalty exigible under the Factory and Workshops Act of 1878, and this claim was repeated in the second plea-in-law for the pursuer, yet the proposed issue contained no reference to this claim. Further, the case was one more suited for proof than for jury trial, as it involved questions of law as well as intricate matters of facts relating to machinery.

The pursuer replied, that besides being one of the enumerated causes it was itself a case eminently suited for jury trial.

It being pointed out by the Court that the £100 penalty provided by the Factory and Workshops Act 1878 (sec. 82), must be recovered by summary conviction before a Court of summary jurisdiction under sec. 89, the pursuer's counsel agreed to delete the second plea-in-law above quoted, and this having been done at the bar,