Scottish Court of Session Decisions

Andrew Baxter raised an action in the Sheriff Court at Aberdeen against James Abernethy & Company, engineers and boilermakers there, for £200 in name of damages for injuries received by him while in their employment.

He averred—“(Cond. 2) On Friday 11th December 1891 pursuer was engaged as a boilermaker in the defenders' service at their works at Ferryhill, Aberdeen. He was subject to the orders of George Andrews, the foreman of the defenders' boiler making department. (Cond. 3) The defenders use a small travelling crane for the purposes of their work, and on the afternoon of said 11th December 1891 this crane had got displaced from the rails upon which it travels. The pursuer was ordered by the said George Andrews, his foreman, to assist in placing this crane in proper position on its rails by means of a sling. In order to do so the pursuer had to climb up to the rails, which run upon beams about 15 feet from the ground. The pursuer had to stand on one of these beams and hang on by his hands to a beam about 5 feet higher, on which another and larger crane travels. While in that position the larger crane was moved along its rails and passed over the pursuer's left hand and severely injured same. … Explained that the smaller crane was, to the defenders' knowledge, defective and unfit for the use to which the defenders put it. In consequence of its insufficiency the strain placed upon it in the raising and carrying of plates, &c., almost invariably caused it to be displaced from the rails. The defenders' took no means to remedy such defect, and in consequence the workmen employed at the job for which such small crane had to be used necessarily had to replace same on the rails. The defenders, however, although they were well aware that this was matter of daily occurrence, provided no proper means or appliance for the work of replacing the crane, and in consequence of the want thereof the workmen, such as pursuer, were compelled to adopt the means before narrated, which involved risk and danger that would have been entirely obviated had the defenders either remedied the original defect in the said crane or provided proper appliances for replacing same when displaced. (Cond. 4) The said accident, and the injuries thereby caused to the pursuer were due to the negligence of the defenders, or of their said foreman, or of other of their servants for whom they are responsible. In obeying the said foreman's orders the pursuer relied, and was entitled to rely, that proper arrangements would be made by the defenders for insuring his safety while engaged in the dangerous work he was ordered to do, and in particular that the upper crane should not be used. The defenders, however, took no precautions whatever for the pursuer's safety, and gave no warning or

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intimation to the man in charge of the upper crane that the pursuer was to be engaged in the position he was put; and they further gave no warning or intimation to the pursuer that the upper crane would be used.”

The defenders lodged defences and pleaded, inter alia—“(2) The pursuer's averments being insufficient to support the action at common law, it should be dismissed with expenses.”

On 19th April 1893 the Sheriff-Substitute ( Brown) pronounced the following interlocutor:—“Sustains the second plea-in-law for the defenders: Dismisses the action.”

The pursuer appealed to the Sheriff ( Guthrie Smith), who on 18th October recalled the interlocutor of the Sheriff-Substitiite and allowed a proof.

The defenders appealed to the Second Division of the Court of Session, and argued that there was no relevant case against them stated by the pursuer on record.

Argued for the pursuer—The case was relevant. The employers had neglected to take reasonable precautions for the safety of their workmen, and were therefore liable. The machine was notoriously defective, and when the workmen were sent up to replace the crane on the rails no warning was given when the upper crane was moved— Murdoch v. Mackinnon, March 7, 1885, 12 R. 810; M'Guire v. Cairns & Company, February 28, 1890, 17 R. 540.

At advising—