Scottish Court of Session Decisions

William Stanforth, residing in Grahamston, raised this action against the Burnbank Foundry Company, to recover damages for personal injuries sustained by him while working in the defenders' employment. The pursuer, who had been thirteen years in the company's employment and was a steady workman, was engaged at his ordinary work on the 25th July 1886 in polishing a railway signal segment upon the left wheel of a machine called a “glazer” in the defenders' works. This segment was a curved plate of metal about 32 inches long and weighing about 22 lbs., the particular piece of the segment which had to be polished being a rectilinear or rectangular projection 11½ inches long, ⅝ of an inch wide, and ¾ of an inch high. In polishing this piece of metal the workman held one end of the segment in his hand, resting it against either of his thighs, and changing it as might be necessary. The following description of the “glazer” is taken from the note of the Sheriff:—“It consists of an iron framework on a stone foundation supporting two wheels on the same axle a few feet apart, which are set in motion by a common driving belt. The wheels are of iron, covered with wood, over which is stretched a strip of walrus hide. Their diameter—iron, wood and leather all included—is about 27 inches, and their width 6 inches, while their greatest height above the stance to which the machine is bolted, is about 3½ feet. The leather made use of in such machines is usually about ⅞ of an inch thick when first laid on. It is fastened to the wood underneath, first with glue, and then with wooden or leather pegs. On the defenders' machine wooden ones are used. Those pegs are inserted in rows of four, placed straight across the face of the wheel, recurring every three or four inches. The surface of the leather is naturally rough, and consequently after being fastened to the wheel, it has to be shaved or pared with a turning instrument so as to remove irregularities and give it the same thickness throughout. After being turned, the leather is coated with glue, and this covered with powdered emery, and the wheel is then ready for use.”

While the pursuer was engaged in this operation of polishing, by some means or other the segment caught in the wheel, and the pursuer was dragged over the wheel and sustained severe injuries. The pursuer maintained that the left-hand wheel of the machine was in very bad order and dangerous to work at, that not only was the leather generally worn down to about ⅜ of an inch, but that it was even thinner at the edges, that it was loose upon the tire, that its surface was not smooth and equal, but irregular, that in some places it was soft, and in

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others hard, that the pin-holes were enlarged and open; that because of all this the balance of the wheel was untrue, with oscillation as its result, and that these defects arose from the fault of the defenders. The defenders maintained that the wheel was properly balanced and ran true; that though the leather was reduced to ⅜ of an inch over all, and was even thinner at the edges, this did not render it unsafe; that it was not loose from the tire, or irregular on the surface; that as it had been re-coated with glue and emery only the night before the accident happened, it must have been superficially of the same hardness throughout; and that, for the same reason, whatever may have been the case when it was bare of emery, there could have been no open pin-holes at the time of the accident. They maintained that the accident was due entirely to the pursuer's carelessness in allowing the segment to catch in the wheel while polishing it.

There was a great conflict of evidence, but it was proved that the right-hand wheel of the glazer was out of order and dangerous to work at, and that it had not been used for some time; that the leather upon the left-hand wheel was also very much worn, and that the wooden pins that attached it to the wheel were loose, that leather had been procured some little time before for the purpose of putting both wheels in order, and that both the workman himself and his employers knew of this state of things.

On 19th January 1887 the Sheriff-Substitute ( Bell) pronounced this interlocutor “The Sheriff-Substitute having considered the closed record, proofs, and whole process, finds in point of fact that on 24th July last, while the pursuer was engaged at his ordinary employment of polishing a railway signal segment at a glazer or polishing machine in the defenders' works, a piece of metal which he was polishing was thrown suddenly off the wheel to which the pursuer was holding it, whereby the pursuer along with the segment was carried over the machine, and was thrown violently to the ground, and sustained serious injuries as libelled: Finds that the pursuer was an experienced steady workman, and well accustomed to the kind of work in which he was engaged: Finds that the glazer at which he was working was defective in respect that the walrus bide covering the tire of the left wheel which the pursuer was using had by long use (during twelve years), and by repeated turnings, being reduced to less than one-half of its original thickness: Finds that the attachment of the walrus hide to the tire was insecure, although by renewal of the pegs, and by the application of glue and emery, this defect was in some measure remedied and concealed: Finds that the right wheel was also out of repair to such an extent as to be useless, and being connected by the spindle with the left wheel, was calculated to render the movements of the latter irregular: Finds that from this cause the glazer was dangerous, and its defective condition was known to the defenders, who had provided walrus hide for covering the tires of both wheels, but the re-covering had been unfortunately delayed until after the accident: Finds that in the absence of any direct evidence as to the immediate cause of the accident, the presumption is that it was caused by the defective state of the glazer: Finds that there is no proof of contributory negligence on the part of the pursuer: Finds in law that the defenders were in fault, and responsible for the defective condition of the glazer, and liable in damages to the pursuer for the injuries and loss which he has sustained by the accident; therefore assesses the damages at £60, and finds the pursuer entitled to expenses.

“ Note.—Although there has been a considerable conflict of opinion among the witnesses, the Sheriff-Substitute is satisfied that the weight of evidence has proved that the glazing machine at which the pursuer was working had been in a defective state for a considerable time, and was at the time of the accident dangerous. The right wheel had been condemned as unfit for use in consequence of the injuries to the leather, and being still attached to the spindle, it was from its imperfect state liable to affect the movements of the left wheel. The leather covering of the left wheel greatly required renewal, but had been carelessly left in a defective state, although it had from time to time been pegged down and its surface covered with glue and emery so as to admit of its being used. But it was liable at any time to give way so as to cause an accident, and was in a dangerous condition at the time of the accident. It is true that the iron parts of the machine had been repaired about two years ago, and that the machine had been examined and reported on by Messrs Blackadder, engineers, shortly before the accident, but no particular attention was paid to the condition of the leather coverings of the wheels as these did not fall within the proper department of these engineers, and the re-covering with walrus hide was further postponed, and after the inspection the machine continued to be used as before. The usual process of applying emery and glue to the surface of the left wheel was adopted by the pursuer on the night before the accident, and he observed nothing wrong next morning while engaged at his usual work, and he went on with his work without anything unusual occurring until he felt a sudden bump, and met with the accident by which he was rendered unconscious. There is no direct evidence as to the immediate cause of the accident, and the inquiry has been rendered more difficult from the circumstance that the leather covering of the left wheel was taken off and destroyed. For this no blame is attributable to the defenders as it appears to have been done without any intention of concealment, and merely in order to remove rubbish out of the way. But it has been shown in the proof that a tear or cut in the walrus hide was found after the accident, such as might have been caused by a projecting part of the end of the segment having come in contact with the wheel while in rapid motion, and it remains to be considered how this accident occurred. It might probably have been through carelessness, or an accidental slip on the part of the pursuer, but there is evidence that he was a steady and experienced workman, and the presumption is that some irregularity in the surface or in the motion of the defective wheel caused the projecting part of the segment to come in contact with and catch upon the wheel—the rapid motion of which (making 1300 revolutions in a minute) would naturally carry over the

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segment and the workman along with it with great violence. An inspection of the premises and of the machine was of considerable assistance in forming this opinion. The Sheriff-Substitute thinks that the pursuer under the circumstances is entitled to the benefit of this presumption. Fault has been brought home to the defender in having delayed the repair of his defective machinery, and there is no proof of any contributory negligence on the part of the pursuer either in respect of carelessness at the time of the accident or of his haying rashly subjected himself to an obvious and known danger. It is true that the pursuer had misgivings as to the condition of the wheel, but having reported these to his employer or those acting for him, he was entitled to assume that the machine which was still allotted to him might be used with safety. Under the whole circumstances, the Sheriff-Substitute is of opinion that the accident is attributable to the fault of the defender, and that he is in law liable for the consequences. The sum of £60 calculated as his average yearly earnings, under deduction of wages for five weeks paid by the defender, seems a reasonable amount as solatium and loss.”

The defenders appealed to the Sheriff ( Muir-Head), and on 16th March he pronounced the following interlocutor:—“Finds in fact (1) that for some years prior to the 24th day of July 1886 the pursuer was in the employment of the defenders at their foundry at Burnbank, and in the course of his employment there was frequently engaged in polishing iron wares on a glazer or polishing machine belonging to the defenders; (2) that on said 24th day of July, while engaged in polishing a railway signal segment on one of the wheels of said machine some sharp or edged part of the segment improperly came in contact with and was caught by the leather with which the wheel was covered, and in consequence thereof the segment was dragged out of the pursuer's hands and he himself fell forward against the revolving wheel and was thrown by it to the ground, thereby sustaining the injuries for which he now claims reparation in damages; (3) that it has not been ascertained what caused the segment to come improperly into contact with and to be caught by the leather on the wheel, and the pursuer to be thrown to the ground as aforesaid, and that the evidence does not disclose reasonable grounds for presuming that the accident was due to defect in the machine, for which the defenders are responsible, rather than to carelessness and fault on the part of the pursuer himself: Therefore finds in law that the defenders are not bound to make reparation to the pursuer: In respect of these findings, recals the interlocutor appealed against, dismisses the action, and decerns: Finds the defenders entitled to expenses.”

“ Note.—…… Of the causa causans of the accident there is no conclusive evidence. There can indeed be no reasonable doubt that the injuries to the pursuer and the damage done to the wheel were simultaneous, and that their proximate cause was what may be called collision (as distinguished from contact) between the wheel and some part of the segment. The question is, was that collision due to defect in the wheel, for which the defenders were responsible, or to the fault of the pursuer, of which he himself must bear the consequence? He of course maintains the first of these alternatives. But he must prove it, or at least establish a strong presumption in its favour. In the recent case of Macfarlane v. Thomson, Dec. 6, 1884, 12 R. 232, the rubric runs—“Where the cause of an accident to a workman is not ascertained, the fact that it has taken place will not raise a presumption that it was caused by a defect in the machinery or plant for which the master is responsible. The pursuer must prove that the cause was some defect for which the master was responsible, although it is not necessary to show the precise nature of that defect.” That is to say, as I understand the application of the judgment to such a case as the present, that the workman must prove not only that there was defect in the machinery or plant of which his employer was, or in the exercise of reasonable diligence ought to have been aware, of itself sufficient to have caused the accident without any fault on his, the workman's, part, but also that the accident could not have been caused by his, the workman's, agency unless such defect had existed. It is only then, as it seems to me, that in the absence of proof of the ultimate cause of the mishap there can be said to be reasonable presumption that the accident was due to the defective state of the machinery or plant, and that the employer can be held responsible.………

“On the whole the evidence tends in my opinion to establish that the accident was owing to carelessness of the pursuer rather than to defect in the wheel for which the defenders are responsible. But it is not necessary to go so far. It is enough for the defenders that in the absence of distinct proof of the cause of the accident the pursuer has failed to show a reasonable presumption that it was due to the defenders' fault. There can be no such presumption in presence of evidence that the accident might have occurred through the pursuer's own carelessness even had the machine been in the most perfect order. The action therefore must be dismissed.”

The pursuer appealed to the Court of Session, and argued—The wheel was worn, and was not kept in proper repair. That these defects existed, and that the defenders knew of them, was shown conclusively by the fact that the leather had been ordered, and had in fact arrived, for the purpose of being put upon both wheels. The onus was therefore upon the defenders to show that there was carelessness, leading to the accident, on the part of the pursuer, and not on him to show that he was careful. The duty of the employers was to provide a proper wheel. It was proved, and almost admitted, that they did not do so; there was therefore fault on their part, and the presumption was that the accident occurred through the defect in the wheel for which they were responsible— Macfarlane v. Thomson, Dec. 6, 1884, 12 R. 232; Walker v. Olsen, June 15, 1882, 9 R. 946.

The respondents argued—There was direct evidence that there was no such defect in the wheel as to cause the accident. If the defenders could show, as they did here, that the wheel was in reasonably good working order, and could be worked by a man taking ordinary care, the onus upon them was discharged. The presumption in the whole circumstances was that the accident was occasioned by the pursuer's carelessness.

At advising—