Scottish Court of Session Decisions

This was an action of damages raised by the widow of Alexander Murdoch, a miner, who was killed while in the employment of the Gauchalland Coal Company, in their pit near Galston. The action was raised against the trustee under a trust for behoof of the creditors of the company and James and Adam Wood, the partners of it. The circumstances of the case were as follows:—In No. 2 Gauchalland Pit, where the deceased was working, there was a “blind” shaft from the “major” down to the “main” coal, 20 fathoms deep [ i.e., one not passing up to the surface]. About four fathoms below the “major” coal there was another seam called the “stone” coal. At the top of the “blind” shaft there was a drum or pulley from which two cages were worked by means of a rope working over the drum, one ascending while the other was descending. The cages were used in order to receive coal from the different seams in the “blind” shaft, and to lower them to the main coal at the bottom of that shaft, to be transmitted by the main road in the main coal to the pit-head by the main shaft. The raising and lowering of the cages was regulated by a brakesman, whose duty it was to work a brake in connection with the drum. On 24th July 1883 the deceased was working with a man called Kirkland in the seam of stone coal. It was his duty to load hutches and push them on to the cage when it was lowered to him by the brakesman. He pushed his hutch towards the cage, but it stopped, and Kirkland went round to shove it back so that Murdoch might give it more impetus. He shoved the hutch back and said to Murdoch “there,” and Murdoch thereupon took the hutch back a few feet and called to Kirkland to stand clear. The brakesman having heard the exclamation “there,” understood this to be a signal to him to remove the cage, and he raised his brake and removed it. Murdoch meantime was pushing the hutch towards the cage, and coming on through the empty space fell down with his hutch to the bottom of the shaft and was killed instantaneously.

The grounds of action which bear on the decision in the case were stated as follows:—'(Cond. 5) The defender was bound by law and the general practice in mining, in order to secure the safe and proper working of the pit, to provide at every working opening leading into a shaft a bottomer for the purpose of putting the hutches off and on, whose duty is to receive the hutches, give the necessary signals to the brakesman, and generally to take charge of the communication between the miners in the workings at the part of the pit where he is stationed, the brakesman at the top of the shaft, and all necessary connections with the other seams. No such man was stationed at the working opening leading from the stone coal where the pursuer's said husband was working, to the said blind shaft.” “(Cond. 6) The defender was bound by law, and the general practice in mining, to provide proper signals to show when the bucket or cage in said blind shaft was to be put into motion or stopped. There was no such signal, and consequently the brakesman was unable to judge with precision when to put the bucket or cage in motion, or stop the same. The only signals which the men could avail themselves of in communicating with the brakesman were ‘ca’ awa” or ‘doon.’”

The defender denied that it was either usual or necessary to have a bottomer, there being only about ten men working at the place at the time of the accident, or that it was the general practice in mining to provide means of signalling in the blind shaft in question, it not being fifty yards in depth (Coal Mines Regulation Act 1872 (35 and 36 Vict. c. 76), sec. 51, sub-sec. 19).

He also pleaded—“(3) The accident in question having been materially contributed to by the carelessness of the deceased Alexander Murdoch, the defender is entitled to be assoilzied with expenses. (4) The accident in question having been caused by the carelessness of a fellow-workman of the deceased who had no duty of superintendence or authority over the deceased, the defender is entitled to be assoilzied with expenses.”

The Sheriff-Substitute ( Guthrie) pronounced this interlocutor—“Finds that it is not proved that the death of the said Alexander Murdoch was caused by any fault or omission of the defender for which he is answerable either at common law or under the Employers Liability Act: Therefore assoilzies the defender and decerns.

“ Note.—This unfortunate accident happened from a mistake made in signalling to a brakesman employed in working the cages conveying coal by a blind shaft in one of the defender's coal mines. The pursuer's chief contention is, that it would not have happened if a bottomer had been employed at the entrance of the coal seam where the deceased was loading his hutch into the cage. I am unable to see how this precaution, which is in some cases a proper one, would have guaranteed the men against accidents. It would not have made such an accident as happened impossible, although it might have had the result of making the bottomer, or some other, the victim instead of the pursuer's husband. The bottomer might have made a wrong signal, or the brakesman might have mistaken his signal, just as the mistake occurred on the occasion in question. But this view does not suffice to discharge the defender's liability; for if they be in fault in not employing a bottomer, it may reasonably be argued that that fault is to be deemed the cause of the accident. Upon the evidence, however, it is impossible, in my opinion, to say with any confidence that the employment of a bottomer would have been conducive to greater safety, or that it was the duty of the defender to have one. If the hutches had been brought to the bottom by boys employed as drawers, or if there had been a large number of men, it would undoubtedly have been proper and necessary to have a bottomer; but in the latter case it is not clear from the evidence that the employment of a

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bottomer would have been resorted to for the sake of greater safety. I think that a bottomer is employed, where men draw their own hutches, rather for the sake of increasing the output than of increasing the safety of the miners.

It is unnecessary to go into any of the numerous other faults alleged in the condescendence. There is no sufficient evidence that any usual precaution was neglected or that any part of the machinery or plant was out of order. The accident happened simply through an unhappy mistake made by the witness Kirkland, and it is in my opinion impossible to find any law or reason for holding the employers bound to pay for this.”

On appeal the Sheriff ( Clark) adhered.

The pursuer appealed, and argued—There ought to have been a bottomer at the place. Had there been such the accident would not have happened. It was a proper and necessary precaution, as was shown by the proof, to have a bottomer at such a place, and for the absence of such a precaution the employer was responsible. Again, the want of a proper system of signalling by way of a bell also conduced to the accident. For such a defect in his system of work the employer was liable. It was proved that a bell would have been desirable, because such a signal could not have been mistaken, whereas the accident showed that a mere exclamation of one miner to another might be taken for a signal.

Authority— Edgar v. Law & Brand, 10 Macph. 236.

Argued for defender—No fault was proved. (1) The system of signalling by bell was adapted for the main shaft, and was provided for such by the Mines Regulations Acts. But this was a short blind shaft, and the men were so near the brakesman that he could hear them call, and that was a perfectly good signal. (2) There was no need of a bottomer. His duties were to keep order when a number of drawers were coming to the shaft, but he was not needed where only a few were at work. Even if there ought to have been one, his presence then would not have made any difference. The accident arose from a mistake which he could not have prevented. (3) In any view, the deceased had accepted employment where there was neither bell nor bottomer, and worked in full knowledge of that state of working. That barred this action.

Authorities (on last point)— Crichton v. Keir, February 14, 1863, 1 Macph. 407; M'Gee v. Eglinton Iron Company, June 9, 1883, 10 R. 955; Wilson v. Wishaw Coal Company, June 21, 1883, 10 R. 1021; Woodley v. Metropolitan District Railway Company, February 14, 1877, L.R., 2 Ex. Div. 384.

At advising—