Scottish Court of Session Decisions

This was an action of damages at common law, and also under the Employers Liability Act 1880, brought in the Sheriff Court at Edinburgh at the instance of the widow and children of Thomas Casey, labourer, who had been killed while in the employment of Peter Sinclair & Sons, builders, Caledonian Cresent, Edinburgh.

In and prior to the month of May 1885 the deceased was in the employment of the defenders as a labourer. At that time the defenders had a contract for the construction of a sewer about 500 yards in length, and which had to pass under the North British Railway at a point a short distance west of the Haymarket Station. At the point the drain crossed, the line is on an embankment.

The pursuers averred—“(Cond. 2). .. The defenders had at the said operations foremen and others entrusted with the superintendence thereof. To the orders and directions of those foremen and others the said Michael Casey was bound to conform. (Cond. 3) … In connection with the said contract the defenders or their said foremen ordered and directed that the operations should be carried on simultaneously at both sides of the main line of said railway, and that the workmen

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should cross over it to and from and in the course of their work, and that the workmen's tools and other material used in connection with the work should be conveyed over the line. On or about the 16th day of May 1885 the said Michael Casey, in the discharge of his duty to the defenders, and in obedience to orders or directions which he received from one of the defenders' said foremen or other superintendents, was crossing the said line of railway when he was suddenly knocked down and run over and instantly killed by a train which had come swiftly to the spot where the accident happened. At the same time there was a train coming in the opposite direction.”

The answer to Cond. 3 contained the following statement—At the time Casey did cross the railway—9’50 in the morning—it was daylight, and the train that killed him, being the train for Queensferry, was due, and had stopped at Haymarket Station, where it could be seen from where the men were working. He could see and ought to have seen the train before crossing. From where he was he could see the train all the way from the Haymarket Station.”

The pursuers averred—“(Cond. 4). .. The defenders or their said foremen or superintendents culpably and recklessly permitted and ordered and directed the said Michael Casey to carry on his work by crossing the railway line.. .. The said Michael Casey could not see the train which ran over him approaching, and thereby he could not have himself ascertained at the time, and before he was knocked down, whether the line was clear when he endeavoured to cross.”

The defenders pleaded that the statements of the pursuers were not relevant.

The Sheriff-Substitute ( Rutherfurd) on 11th Dec. 1885 repelled this plea and allowed a proof.

“ Note.—It is not without considerable hesitation that the Sheriff-Substitute has allowed a proof in this case. On the part of the defenders it was maintained that the pursuers' averments are irrelevant, inasmuch as they do not negative or exclude the possibility of the deceased having met his death through his own negligence. The pursuers allege (Cond. 2) that the deceased was killed while crossing the North British Railway at a point where the line runs upon a raised embankment, and it was argued that he must have been in a position from which he could have seen any approaching train, and as the danger was known and obvious he ought not to have attempted to cross the line until he was certain that the way was clear. The pursuers, however, allege (Cond. 4) ‘that the deceased could not see the train which ran over him approaching, and thereby he could not have himself ascertained at the time, and before he was knocked down, whether the line was clear when he endeavoured to cross.’ Now, the pursuers do not state what prevented the deceased from seeing the approaching train by which he was killed; but they aver at the end of article 3 of the condescendence that at the same time there was a train coming in the opposite direction, and it is possible that while the attention of the deceased was attracted by the one train he was run over by the other without contributory negligence on his part. If that were so, and if, as the pursuers allege, the deceased was exposed to unnecessary risk not incidental to his employment, and against which the defenders took no steps to protect him, the Sheriff-Substitute is not prepared to say that they would not be liable in damages, and he has therefore allowed a proof.”;,

The defenders appealed to the Court of Session under section 40 of the Judicature Act.

The appellants argued that the pursuers' statements were irrelevant. All the general elements of danger in connection with the work in question were known to the deceased; this particular element of danger, viz., the approaching train, should have been known. The pursuers should specify why the deceased could not see the train approaching— M'Gee v. Eglinton Iron Company, June 9, 1883, 10 R. 955; Waterson v. Murray, July 1, 1884, 11 R. 1036.