Scottish Court of Session Decisions

This was an action by John Kelly, miner Blantyre, for damages for injuries suffered by his pupil son Edward, in a burning ashpit, through the alleged fault of the defenders Merry & Cuninghame, coalmasters Blantyre.

The pursuer lived in a street of miners' houses called Merry's Row, at Blantyre, which were let to miners in the employment

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of the defenders. In a piece of waste ground at the back of one row of the houses comprising the street were six ash-pits, surrounded by high walls but without roofs, with holes in the walls through which ashes and other house refuse could be put. These ash-pits were used by all the occupiers of the street, including the pursuer. The ash-pit at which the accident to Kelly's child took place was enclosed by walls 9 feet 4 inches high, and there were two apertures in the back wall about 4 feet high by 3 broad and 3 feet 6 inches from the ground. The public had access to this piece of waste ground, and the children of the residents in the street were accustomed to play there. Upon the 14th August 1888 the children of the pursuer went there to play, and a ball belonging to one of them was thrown through one of the apertures in the back wall of this ash-pit. Edward Kelly climbed up to the aperture and went into the inside to fetch it out. In doing so he was very severely burned in his feet and legs by smouldering ashes.

The pursuer averred that the defenders had the exclusive charge of these ash-pits, and that they employed a man to look after their condition and keep them safe. For some weeks prior to the time of the accident a fire had been burning in this ash-pit, and although the attention of the defenders had been called to this fact they had taken no measures to put it out. They had not a shutter or protection at the aperture, and generally they had failed to adopt all necessary precautions to prevent anyone from entering the said ash-pit or being injured thereby.

The defenders admitted that the ash-pits were their property and under their control and that they employed a man to see they were kept in order, but explained that the persons using these ash-pits often put burning ashes into them which caused fires.

The pursuer pleaded—“(3) The pursuer's said child having a right to be in the said open and public place where the ash-pit was, and having no knowledge or reason to apprehend any danger, and nothing being done by the defenders to prevent or to warn or deter him from getting into said ash-pit, the defenders are responsible for the injuries he sustained.”

The defender pleaded—“(3) The defenders having taken all usual and necessary steps to insure the safety of the persons entitled to use said ash-pits, are entitled to absolvitor with expenses. (4) The alleged injuries having been caused by the negligent and improper conduct of the pursuer's son, the defenders are entitled to absolvitor with expenses.”

The Sheriff-Substitute allowed a proof, the result of which is fully stated in the note to the Sheriff-Principals interlocutor.

Upon 3rd December 1888 the Sheriff-Substitute ( Birnie) pronounced this judgment—“Finds (1) that on 14th August last the pursuer's son, a boy eleven years of age, was burned in an ash-pit behind Merry's Rows, Blantyre, the property of and under the charge of the defenders: (2) That said ash-pit had been on fire for some weeks previous to said date; that M'Kinlay, who had charge of it, attempted to put out the fire but had not done so, and gave no notice that the ash-pit was on fire: (3) That said ash-pit formed one of six standing in an open space behind the rows, and used by the occupiers, of whom the pursuer was one; that the children of the rows were in the habit of playing in the open space; that the pursuer's son had gone into the ash-pit after the ball of his younger brother; that it is not proved that the pursuer or his wife or son knew the ash-pit was on fire: Finds the defenders liable in damages; assesses the same at £60: Finds them liable in expenses, &c.

“ Note.—There are two questions—first, Was M'Kinlay in fault? and second, Was the boy or his parents guilty of contributory negligence?

I think M'Kinlay was in fault. He was bound to use reasonable and usual precautions, and it seems to me he did not do so when he left the fire smouldering, and did not either make certain that it had been extinguished or give notice—See as to this, Greer, 9 R. 1069; M'Gregor, 10 R. 725; Morran, 11 R. 44; Adams, 1 S.L.R. 6; Adams, 11 R. 852; Wisely, 3 S.L.R. 30; Harrison, 4 S.L.R. 233.

The remainder of the case appears to me ruled by Campbell, 1 R. 141, where damages were given for injury to a child by an oilcake crushing machine exhibited in a market-place and left unguarded. No doubt the child ought not to have touched the machine. But contributory negligence is the want of such caution as can be reasonably expected, and it was held that the owners of the machine could not reasonably expect children not to touch it. In like manner the defender could not reasonably expect that a boy eleven years of age would not follow his ball into a public ashpit— Grant, 9 Macph. 258; Galloway, 10 Macph. 788; Ferguson, 43 Jur. 305; Whitehead, 3 S.L.R. 443; Robertson, 3 S.L.R. 23.

The boy has been kept several months from school, and must be proportionally longer before he can earn wages for his father. He was burned from the feet to the knees on both legs. For eight or ten days his life was in danger. He suffered great pain. At the time of the proof he was not allowed to stand for fear of bursting the tissues, and it will be some months before he is allowed to do so. His legs will never be so strong as they would have been but he will be able for any employment he probably would have followed. I think £60 fair damages.”

Upon appeal the Sheriff ( Berry) on 5th August 1889 pronounced this judgment—“Under reference to the annexed note, Finds that on 14th August 1888 the pursuer's son Edward Kelly, a boy eleven years of age, was burned about the feet and legs by hot cinders or ashes in an ash-pit behind Merry's Rows, Blantyre, the property of and under the charge of the defenders, he having climbed with bare feet into the ashpit by means of an aperture in the wall, about three feet five inches from the ground: Finds that whether there was or

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was not fault on the part of the defenders in having failed to have the fire of the burning cinders extinguished or to give warning of the condition of the place, there was fault on the part of the boy in going into the ash-pit as he did, and that he was sufficiently intelligent to know that he incurred danger in doing so: Finds that the defenders are not liable in damages to the pursuer in respect of the injuries sustained by his son: Therefore recals the interlocutor appealed against, and assoilzies the defenders, but in the circumstances finds no expenses due, and decerns.

Note.—The material facts of this case are for the most part well ascertained by the proof, although there is some conflict of evidence as to the condition of the ash-pit prior and up to the time when the pursuer's son was injured. Several of the witnesses called for the pursuer say that for some weeks before the 14th of August, when the accident happened, there had been fire smouldering in the ashes, and that smoke was coming from the ash-pit. The witness Connolly, for example, says that to his knowledge the place was burning from the 11th of July to the 14th of August, and that smoke was coming from it, while another witness Mrs Waugh, who lives immediately opposite this ash-pit, says that there was a good deal of smoke coming from it, adding at the same time that she does not know if the boy must have seen it. Against this there is the evidence of M'Kinlay, who has charge of the ash-pits, and looks after the cleaning of the place. He says that he had quenched the fire spoken of as having existed before the accident; and by the boy himself it is said, in regard to any symptoms of fire at the time of the accident, that he saw nothing to make him think the place was burning. On a consideration of the proof as a whole I am disposed to regard the case on the footing taken by the Sheriff-Substitute, that the ash-pit had been on fire for some time, and although M'Kinlay had tried possibly more than once to extinguish the fire he had not succeeded. That it was smouldering at the time of the accident the accident itself shows. It may be taken also that M'Kinlay did not give warning of there being fire in this ash-pit to the occupants of the different houses in the rows.

It was no doubt part of M'Kinlay's duty in keeping the ash-pits properly to see that they were free of smouldering fires, and prevent them from being a nuisance. I daresay it was difficult for him to keep them entirely free, for, as the evidence shows, fires in the ash-pits through the practice of throwing in red-hot cinders were not uncommon. Still, if a fire existed unextinguished in this particular ash-pit for several weeks, with smoke coming from it so as to cause, as Connolly says, a nasty smell, it would be impossible, I think, to say that M'Kinlay had properly discharged his duty. There may, however, be a further question—How far, if he knew of a fire having been left smouldering in a particular ash-pit, it was incumbent on him, in anticipation of the possibility of children climbing into it, to go round the different houses and warn the occupants of the fact? It might be maintained with plausibility that it was no less the duty of the parents of children in the rows to warn them against the risk of going into any of the ash-pits, seeing that, apart from the chance of hot ashes, they might receive injury from broken bottles and other pieces of rubbish apt to be thrown into such places.

But on the assumption that there was a failure of duty on M'Kinlay's part in not giving warning of there being fire in this ash-pit, the question has still to be considered whether in these circumstances the defenders are liable in damages for the injury sustained by pursuer's son. On that question the construction of the ash-pit, and the way in which the boy met with the accident have a material bearing. No one except the defenders' servants had a right to go into the place, and this ash-pit, like the other five built for the rows, was so constructed as to prevent anyone from going in unless he took some trouble for the purpose. It was surrounded with walls fully 9 feet high, and in one of the side walls there were two apertures for allowing ashes and refuse to be thrown in, these apertures being at the side 3 feet 5 inches from the ground, or nearly a foot higher than, according to the evidence, is usual. Through one of these apertures, aided by a loose stone which the occupants of the houses had placed to help them in throwing in ashes, the boy climbed in to fetch his little brother's ball, which in the course of play had fallen in. He says that at the first step he found the ashes were hot, and he sunk in. He adds afterwards that they were not burning at the top where the window or aperture was, but that they were burning at the bottom, where the ball seems to have been lying at a distance of some 5 feet from the aperture. He went down to the ball and picked it up, getting severely burned about the feet and legs in doing so. He was afraid to go back to the aperture by which he had entered, as he said his hands would have got burned as well as his feet. He dropped the ball therefore, and got out by climbing over the wall. In such circumstances it seems to me that the pursuer is not entitled to succeed in his claim of damages. It certainly was a very natural thing for the boy to climb into the ash-pit for the ball, but he must have known that it was a place into which he was not intended or entitled to go, and that in going in barefoot he incurred the risk of being hurt. Notwithstanding his statement that he saw no signs of fire in the place, the evidence to which I have referred leads to the conclusion that smoke must have been coming from it, and it is probable that with a boy's rashness he went heedlessly on for his object, the recovery of the ball. He was eleven years of age, and apparently a boy of ordinary intelligence and spirit. He admits having previously climbed on the roofs of the houses, and having been spoken to often about doing so. He says that he had never been on the

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walls of the ash-pits before, but one of the pursuer's witnesses, M'Dougall, speaks to having seen him there. The same witness says that he has often seen boys go into the inside of the ash-pits, and also that he has frequently seen fires in them caused by people throwing in hot ashes. The boy in going in, as he cannot, as it seems to me, be acquitted of fault and rashness, directly contributed to the injury he met with. If he were a grown man it could hardly be maintained that the defenders were liable to him in damages, and in my judgment the element of his being not a grown man but a boy of eleven is not sufficient to lead to a difference in result. A boy of that age is not a mere infant, so as to fall within the rule applied in Ord v. Maddison, 1 R. 149, where, in answer to a question put by the presiding Judge, the jury naturally found that a child of four, to whom contributory negligence was sought to be imputed, did not know that there was danger in meddling with the wheels of an oil-cake crushing machine. Here the pursuer's son, being a boy of ordinary intelligence, was of sufficient capacity and discretion to know the possible consequences and danger of going into the ash-pit with bare feet. On consideration, therefore, I am unable to arrive at the same result as the Sheriff-Substitute, and think that the defenders are entitled to be assoilzied.”

The pursuer appealed, and argued — M'Kinlay was a servant of the defenders, and they were responsible for him; they were therefore in fault in allowing the fire to be in the ash-pit, and not taking proper means to put it out. The ash-pit was in a dangerous state. Children were in the habit of playing near it in the knowledge of the defenders, and there was an implied duty upon the defenders to take care that children did not come to harm through going into dangerous places under their control. The child had acted naturally, and the defenders ought to have anticipated some such action and made provision against it. There was a difference between this case and those where defenders had been assoilzied from liability, where children had fallen into ponds, etc., as there the danger was apparent to very little children — Cormack v. School Board of Wick, June 21, 1889, 16 R. 813; Findlay v. Angus, January 14, 1887, 14 R. 312; Auld v. M'Bey, &c., February 17, 1881, 8 R. 495. The defender could not escape liability on the ground that the person injured was a trespasser— Galloway v. King, June 11, 1872, 10 Macph. 788; Clark v. Chambers, April 15, 1878, L.R., 3 QBD 327.

The respondents argued—There was no fault on the part of the defenders or their servant. The occupiers of the cottages put hotashes into the ash-pits, which smouldered, and M'Kinlay poured water on them to extinguish the fire, so that he had performed his duty. The ash-pits were quite safe if no one climbed into them, and no one had a right to do so. The injury resulted through the child's own fault— Forbes v. Aberdeen Harbour Commissioners, January 24, 1888, 15 R. 323; Ross v. Keith, November 9, 1888, 16 R. 86; Ferguson v. Laidlaw, February 1, 1871, 43 J. 305.

At advising—