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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Guire v. Cairns & Co. [1890] ScotLR 27_358 (27 February 1890)
URL: http://www.bailii.org/scot/cases/ScotCS/1890/27SLR0358.html
Cite as: [1890] SLR 27_358, [1890] ScotLR 27_358
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SCOTTISH_SLR_Court_of_Session
Page: 358↓
Court of Session Inner House Second Division.
[Sheriff of Lanarkshire.
v.
Facts:
A workman in an iron foundry was breaking up old iron by dropping upon it a heavy metal ball which was raised into the air by a steam crane. In such an operation splinters of broken metal may fly to a considerable distance. It was not his duty to see that the yard was clear, but following the usual practice the workman shouted a warning, and after a short interval, to allow such of the workmen who heard him to escape to places of safety, he let the ball drop. A splinter of iron flew through the open door of a shed adjoining the yard, and severely injured a workman who had not heard the warning. This door was of considerable width, and there were no instructions given to the workmen regarding it when old iron was being broken in the yard.
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In an action at the instance of the injured man against the owners of the foundry— held that this operation called for special instructions from the employers or their manager, and the safety of the workmen should not have been left to arrangements made by the men themselves, and that the pursuer was entitled to damages, as his injury was caused by the failure of the defenders to make proper arrangements for the safety of their workmen while the operation of breaking up old iron was being carried on.
This was an action at common law and under the Employers Liability Act by Andrew M'Guire, labourer, Glasgow, against Cairns & Company, ironfounders, Hayfield Foundry, Glasgow, for damages on account of an accident sustained by him in their service.
The pursuer was ordered by his foreman George Thomson to help in filling sand into one of the moulding pits on the defenders' premises. These pits were situated in a shed which adjoined an open yard, and there was a door about 30 feet wide in the wall of the shed. The door was divided into two parts, one part being opened on hinges, and the other being opened by means of pulleys. On this occasion the part moved by pulleys was left partially open. While the pursuer was working in this shed the general manager of the works, Andrew Cairns, had ordered some other workmen to break up an iron cylinder in the yard, about 30 yards from where the pursuer was employed; and the method followed was of this nature—a ball of iron, weighing 23 or 25 cwt., was raised into the air by a steam-crane, and allowed to drop upon the cylinder. A splinter flew from the cylinder through the door of the moulding shed and struck the pursuer, inflicting severe injuries upon him.
The pursuer averred—“Said accident was caused through the fault, recklessness, and carelessness of the defenders, or their said manager or foreman, for both of whom defenders are responsible… . The method of, as well as the place for breaking” (the iron), “and particularly when workmen like pursuer were engaged at other work in said moulding shed, as aforesaid, was highly dangerous. … It was defenders' duty, … before proceeding to break said cylinder, to have the said yard so fenced and protected as to prevent injury to their workmen, including the pursuer, while breaking the cylinder in question. On the occasion of said accident the said process of breaking up was carried on under the personal superintendence and control of defenders' said manager, and it was particularly the duty of the said manager, before ordering or allowing said process to be begun, to see that the said door, which runs on pulleys as aforesaid, was entirely shut and said passage closed, or that other sufficient precautions were taken to prevent pieces or splinters of said cylinder to enter said moulding shed, and so prevent accident in carrying out said process of breaking up said cylinder, but the defenders and their said manager failed to discharge said duty, or take any precautions for the safety of pursuer, with the result that pursuer was injured as aforesaid. Further, the defenders' said manager, before proceeding to break said cylinder, should have seen that workmen, including pursuer, who were working as aforesaid in said shed in obedience to orders of defenders' said foreman, were duly warned that said process of breaking up was to be carried on, but no warning was given, and the pursuer was not aware that said process was being attempted until he was struck as aforesaid.” …
The defenders explained that “the operation of breaking up iron was being performed on the occasion in question in the same place and in the same manner as it has been in use to be performed in defenders' works since they were started about twenty-four years ago, and there is no other place within the works in which it could be performed. Explained also that exactly the same method is used in all similar works in the neighbourhood. Explained further, that before the ball was dropped a warning was given, and that it was the duty of pursuer or his fellow-workmen working with him, when this warning was given, to close the door, so as to prevent splinters of iron coming in.”
The Sheriff-Substitute ( Guthrie) allowed a proof. It appeared that the method of breaking up old iron by means of ball and derrick was the usual method practised in the defenders' yard and in other ironfoundries; that splinters of metal often flew from the iron on the stroke of the ball; that it was not the craneman's duty to see that the way was clear, nor was anyone detailed for this duty. There were no instructions by the employers to secure safety for the workmen. It was the practice of the craneman to give warning about a minute before the ball fell by a shout, so as to allow anyone who heard him to escape to a place of safety. Upon this occasion the craneman proceeded as usual, and did not see that the space was clear. The pursuer was engrossed in his task, which was critical, and called for his whole attention, and he did not hear the shout of the craneman. Besides, the warning could not easily be heard within the moulding shed on account of the noise therein. There were no instructions given to the men to close both halves of the door of the shed while iron was being broken in the yard. The half of the door had been accidentally left partially open by workmen passing to and from the moulding shed.
Upon 13th February 1889 the Sheriff-Substitute found that “it was not proved that the defenders were in fault in respect of any failure of the man at the crane to give warning, or by reason of the door having been left accidentally open,” and assoilzied find defenders.
Upon 23rd November 1889 the Sheriff ( Berry) adhered.
The pursuer appealed to the Court of Session, and argued—This operation was dangerous. The only warning given was
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by a shout from the man at the crane, but no precautions were taken to ensure that the shout was heard by all the men in the yard who were liable to be injured. It was therefore an insufficient system. If the ordinary precautions to ensure safety were not sufficient, special precautions ought to be used— Cairns v. Caledonian Railway Company, March 19, 1889, 16 R. 618. The defenders had failed to take reasonable and proper precautions — Murdoch v. MacKinnon, March 7, 1885, 12 R. 811; M'Inally v. King's Trustees, October 27, 1886, 14 R. 8. There could be no plea of contributory negligence, because the danger was not sufficiently visible to the pursuer to excite his apprehensions, as he was right to suppose that all precautions would be taken to avoid injury to the workmen— Grant v. Drysdale, July 12, 1883, 10 R. 1159. The defenders argued—This was purely a case of accident. The system which was followed in this case was the ordinary and usual one, which had been in use in this foundry for many years, and in all the other foundries in the district. The pursuer was quite well aware of it; if he had desired to make the matter more secure he could have had the door shut. No other system had been suggested, or indeed was possible. The shout which the man gave before he dropped the weight was ample warning, and the pursuer should have heard it.
At advising—
The facts of the case are that the pursuer was working in the moulding shed which is in the defenders' yard. There was a door in the shed, and this door was open at the time the operation of breaking up the cylinder was being carried on in the yard; therefore when the ball fell upon the cylinder, it broke off a piece of metal which flew through the open door and injured the pursuer. It seems to me that this was an operation which called for special instructions on the part of those to whom the works belonged, by themselves or their manager. I do not think that this was an operation in regard to which the safety of the men employed in the yard could be left to the chance arrangements made by the men themselves. The practice in this yard on occasions like the present was this—When the man in charge of the derrick was ready to let the weight fall, he gave a shout, and the other workmen understood that each must look out for himself and get out of the way. That might have been an efficient way of carrying on this operation if it had been the fact that the man who had to give the warning shout, and whose duty it should have been under this system to see that the space over which the metal might fly was clear, was able to see, and had a duty under the system to see, that the surrounding ground was quite clear. But that was not what was done. The man just gave a shout, waited a little, and then let the weight fall without observing if anyone was in the way. Now, the pursuer says that at this time he did not notice that the man in charge of the derrick had given a warning shout, and that is quite easily understood because it is a matter of common observation that if anyone is deeply engaged in some work of his own, he does not always notice sounds which occur outside the range of his immediate occupation. I think that in this particular occupation it would have been all right if the shout which was uttered by the man at the derrick had been heard as widely as it was the intention of the shouter it should be heard, but I do not think that a system can be said to be a sufficiently safe one in which the man who has charge of the weight merely gives a shout and then lets the weight fall without taking any precautions to see that the way is clear. It seems to me that if it was the practice in these works to leave the door of the moulding shed open while operations of this kind were going on in the yard, then it was the manifest duty of the defenders to give such instructions to their workmen as would prevent the persons in the shed being knocked down by a mass of metal as this unfortunate man was.
I am of opinion, therefore, there was fault on the part of the defenders, inasmuch as this breaking-up of the cylinder being a dangerous operation, they did not give sufficient instructions to protect their workmen in carrying it out.
As regards the question of damages, this man has suffered very severe injuries, the results of which affect him yet. The doctors say that his arm which was paralysed is improving, but that he will probably never be able to work as well as before. I would therefore suggest that we should name a sum of £100 as damages.
The Court pronounced this interlocutor:—
“Find that the injuries sustained by the pursuer on the occasion libelled was caused by failure of the defenders to make proper arrangements for the
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safety of the workmen in their works at times when metal was being broken up by ball and derrick: Therefore sustain the appeal: Recal the interlocutor of the Sheriff and Sheriff-Substitute applealed against: Find the defenders liable to the pursuer in damages, assess the same at £100 sterling,” &c.
Counsel for the Appellant— M'Lennan. Agent— L. M'Intosh, S.S.C.
Counsel for the Respondent— C. S. Dickson— Younger. Agents— Drummond & Reid, W.S.