Scottish Court of Session Decisions

This was an action of damages raised in the Glasgow Sheriff Court by Edward Shields against Murdoch & Cameron, engineers, 115 Bothwell Street, Glasgow. The pursuer sought damages both on common law and under the Employers Liability Act.

The pursuer averred, inter alia—“(Cond. 1) The pursuer is an iron-borer, and up to 31st October 1892 was in the service of the defenders as a borer. Defenders are art-smiths and heating engineers in Glasgow. (Cond. 2) On or about said 31st October 1892 pursuer was working in the service of the defenders as a hole-borer at a perpendicular boring machine in their works at Bothwell Street. His foreman, to whose orders pursuer was bound to conform, was David Hogg, and pursuer was asked to go to work with the defenders by him…. (Cond. 3) While pursuer was engaged working with said boring machine he had occasion always to stand on an iron-bound table with a foundation of wood. While standing on

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this table pursuer regulated two perpendicular machines while they were doing boring work. The boring was regulated by pursuer's hand, but the force which did the boring was supplied to the spindles by steam. The spindles were kept constantly in motion, so as to be always ready when pressure was required in boring the holes. In the spindles there were a number of pinion-wheels, which, in terms of the Factory Act, should have been guarded, and which a number of defenders' workmen had previously informed defenders' foreman were dangerous, and should be guarded. (Cond. 4) While pursuer was working at the perpendiculars in the usual course of his work, he suddenly slipped on the iron surface of the table, and he fell forward towards the pinion-wheels of the spindle. To save his arm or body from being entangled in these wheels, pursuer stretched out his hands. The result was that the centre finger of the right hand came against the pinion-wheels of the spindle, and though it was instantly withdrawn, the point of it was split, and the nail torn off, and a portion of the bone shattered. (Cond. 5) … Defenders took no steps to remedy the defects complained of till after pursuer was injured in the way described, and the exposed pinion-wheels were then fully covered up. Had the wheels been covered in the same way when pursuer was injured, his fingers could not have been caught by the pinion-wheels in the way described.”

The defender pleaded, inter alia, that the action was irrelevant.

On 14th February 1893 the Sheriff-Substitute ( Erskine Murray) allowed a proof.

The pursuer appealed for jury trial, and proposed an issue.

The defenders maintained that the action was irrelevant, and argued—That the primary cause of the accident being a slip due to accident or carelessness, the defenders were not responsible— Robb v. Bulloch, Lade, & Company, July 9, 1892, 19 R. 971; Greer v. Turnbull & Company, October 27, 1891, 19 R. 21.

Argued for the pursuer—The action was relevant. The ground of judgment in Robb's case was not that the accident was due to a careless slip, but because the pursuer on his own statement had not shown that there was a duty on the defenders to fence the particular portion of the machine at which the injured man was working.

At advising—