Scottish Court of Session Decisions

This was an action in the Sheriff Court at Glasgow by Murdo Macleod, designing himself as a crofter at Portree, against the Caledonian Railway

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Company, for compensation for the death of his son Norman Macleod, who was so severely injured on their premises at St Rollox, Glasgow, that he died the same day. The conclusions were for payment of £500 at common law, or alternatively for £300 under the Employers Liability Act.

The pursuer averred that his deceased son was a labourer or workman in the defenders' employment whose duty it was to make himself generally useful when required, and that at the time of the accident he was following his usual occupation at their siding (or as described by the defenders, their private yard or depot) at St Rollox.

The pursuer further averred—“(Cond. 4) Previous to 22d November 1884 the defenders or their manager allowed certain heaps of material, consisting of broken waggons, sleepers, and old iron, to be accumulated in proximity to some of the lines of rails in the siding used as ‘lyes’ by the defenders. The proximity of these heaps of material to the lines was a source of danger to the workmen engaged in connection with the traffic on the said lines. The defenders, or at all events their manager, were warned of the dangers arising therefrom, but took no steps to remove the danger or to adopt precautions for the safety of their workmen. (Cond. 5) It was part of the deceased's duty to regulate the speed of waggons coming into the various ‘lyes’ of defenders as occasion required. The speed was regulated by applying a brake which is situated at the side of the waggons for that purpose. (Cond. 6) On or about 22d November 1884 the pursuer's son, the deceased Norman Macleod, was at St Rollox siding following his usual occupation. He was told by his foreman to go to a certain line of rails situated about three hundred yards from the entrance gate, and on the north side of the ‘lye,’ to regulate the speed of a waggon coming into it. The waggons were sent down the rails. Pursuer's son, in obedience to the order given to him, and in the execution of his duty, went forward to the waggons to regulate their speed, or to see that their speed was regulated. While deceased was doing this, and had his attention entirely occupied with it, the waggons unknown to the pursuer's son approaching one of the foresaid piles of wood, pursuer's son was caught between the waggon and a log of wood which projected quite close to the rails, being part of said heap or pile, and so severely crushed between the log and the waggon that he died in the Royal Infirmary on the same day. The deceased was thus injured through the negligence of the defenders, or those for whom they are responsible, in failing in their duty of superintendence by allowing said heaps of wood to be placed and to continue dangerously near the line, and also through the fault of the defenders, or those for whom they are responsible, in not seeing that the ways were in a condition of safety for the men working, and particularly allowing the said pile of wood to be in the position before described.” (Cond. 7) The pursuer further averred that the accident was caused by the “gross and culpable negligence of the defenders, or of those for whom they are responsible, in allowing the heaps of material before described to be placed in a position which they knew or ought to have known was dangerous for the defenders' servants, and, in particular, in allowing any log to project from said heap to the line, to the extreme danger of pursuer and his fellow-labourers. It was the duty of the defenders, and their foreman or manager entrusted with supervision, to see that the heaps of material before described were left a safe distance from the rails, so that a man could safely walk between the rails and the pile of wood. It was also the duty of the defenders to see that the ways and works were in proper and efficient condition, order, and repair, and were not obstructed in any way, and that they were reasonably safe for the men to work on. It was also the duty of the defenders to warn the pursuer's son and his fellow-workmen that the pile of wood by which pursuer's son was injured was too near the line, all which they failed to do, and in consequence thereof the pursuer's son was killed in the manner before described.”

The defenders averred that deceased was not a workman in the meaning of the Employers Liability Act, but held the position of a foreman, and was a person having superintendence entrusted to him, and was not engaged in manual labour. They also averred that it was the ordinary practice to store or deposit the material in proximity to the sidings, and that that practice was well-known to the deceased, and he was also aware of the heap in question. They denied the pursuer's account of the accident, and alleged that it was caused by the negligence of the deceased himself in attempting to leap on one of the waggons.

The pursuer pleaded that his son having been killed through the fault of the defenders (or of those for whom they were responsible), or otherwise through the fault of a servant of the defenders, while in the exercise of superintendence entrusted to him, and also their fault in failing to keep their ways and works in safe and proper condition, he was entitled to damages.

The defenders pleaded, inter alia, that (1) the pursuer's averments were irrelevant and insufficient to support the conclusions of this action.

The Sheriff-Substitute ( Spens) sustained the first plea-in-law for the defenders and dismissed the action.

“ Note—In the recent English case of Griffiths against The London and St Katherine Docks Company it was held in the Court of Appeal, affirming the judgment of the Queen's Bench Division ( 13 L.R. 259), that ‘in an action of negligence brought by a servant against his master for personal injury resulting from the unsafe state of the premises upon which the servant was employed, the statement of claim must allege not only that the master knew, but that the servant was ignorant, of the danger.’ This raises more a question of pleading than an actual ruling on a point of law. I should hesitate to say that an action must be dismissed on the ground that there was no averment that a pursuer claiming reparation for bodily injury was ignorant of the danger which he was running at the time of the accident complained of; but whether there be any difference between the law of Scotland and that of England on this point is not, I think, necessary to be determined here. I take it to be the law of both countries that a servant who works on in a particular employment in the face of a patent risk, and sustains injury through such danger, is

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barred from recovering damage. In the same way also the representatives of a person deceased of full age, who has met his death by a risk which he knew was incident to the employment, are also barred from recovering damages. I do not need to quote authority with reference to these propositions. No doubt in most of the cases having a bearing upon this point the cases went to proof, but if the state of matters as disclosed on the record shews that the deceased in this case was working in the knowledge of a patent risk, and that he met his death in connection with that patent risk, it must be held that he accepted a risk incident to the employment, and that his representative's claim against his employers is barred.

Now, what is the state of matters as disclosed upon the record? It appears that the pursuer's son was and had been for twenty years employed on the defenders' railway. It is stated that the deceased was on the day of his death working at his usual occupation in the service of defenders. It is then averred some waggons were sent down one of the sidings by a push from an engine, and it became necessary for him to apply the brake in order to stop them at a particular place. He went forward to the waggons for that purpose, when they were proceeding at a slow speed, and walking alongside of them, endeavouring to apply the brake in the usual way, the waggons approached one of the piles of material which projected to within six inches of the rails, and he was caught between the waggon and the wood, and crushed. Then in article 4 is described the nature of heaps referred to. It is there stated, that some time previous to November 1884 (being the date of the accident) it was observed by a number of the men employed at St Rollox that certain heaps of material, consisting of broken waggons, sleepers, and old iron, for the most part, had been built at the very edge of the line, so that the waggons and the line nearly grazed them, and in some cases were actually caught by such projecting material. In the 5th article of the condescendence it is set forth that it was the duty of the deceased to regulate the speed of the waggons shunted in the proximity of these heaps of materials (at least so I read the article). In these circumstances as set forth it appears to me that the deceased must have known that there was a risk to his life if he got between the waggons and this patent heap of materials; no doubt it was in a moment of forgetfulness, and when occupied with his work, that the accident happened, but still, as matter of law, the risk being a patent one and in his knowledge, it must be held that in accepting the employment he undertook the risk as one incident to it. It therefore does not seem to me that the case should go further. If the pursuer proved all that is set forth in his condescendence, I still think the result would be the same. I have accordingly dismissed the action at this stage, though not upon the authority of the English case referred to, but on the general rule of law referred to above.”

The Sheriff ( Clark) on appeal recalled the Sheriff-Substitute's interlocutor and allowed a proof.

The pursuer appealed to the Court of Session for jury trial, and proposed the following issue—“Whether, on or about 22d November 1884, Norman Macleod, son of the pursuer, while in the employment of the defenders at Saint Rollox siding, Glasgow, was, through the fault of the defenders, or of those for whom they are responsible, crushed between a waggon and a pile of wood, or a log or logs projecting from a pile of wood, and thereby sustained injuries, from the effects of which he died on the same day, to the loss, injury, and damage of the pursuer. Damages laid at common law at £500, or under the Employers Liability Act at £300.”

The defenders objected to any issue being allowed founding on the case of Griffiths as quoted in the Sheriff-Substitute's note.