Scottish Court of Session Decisions

This was an action of damages for £500 raised by John Heaney, miner, against the Glasgow Iron and Steel Company.

The pursuer averred that on the 3rd February 1897 he was in the defenders' employment in their Clydeside pit, Broom-house, and that he had only been three days in their employment prior to that date. On the said date Dundas Simpson was manager of the pit for the defenders, and James Dolan was employed by them as fireman and superintendent. The pursuer averred that he was subject to their orders and instructions. “(Cond. 4) It was part of the duty of the said Dundas Simpson and James Dolan to see that the ways, works, and plant at the defenders' said pit were in safe and sufficient working order. Rules 73 and 74 are specially referred to.”

The pursuer then narrated the occurrence of the accident whereby he was injured, the said accident being due to a fall of stone from the pit roof. He admitted that-he was at work in the pit from 6·30 a.m. until 11·30 a.m., when the accident took place. “(Cond. 7) The said accident was caused through the fault or negligence of the defenders, or their said manager or fireman, in culpably failing to see that the roof of said pit was properly and sufficiently supported by lids or otherwise, as said roof was very brittle, and consequently dangerous, and in failing to supply lids and props for the use of the pursuer and other miners. No lids were supplied by defenders although they were asked for by pursuer and his fellow-workmen from the said fireman on 1st and 3rd February. The fireman promised to supply lids and props but did not do so prior to the accident. Pursuer was not working on 2nd February. By an examination the dangerous condition of said roof could easily have been seen. It is usual, necessary, and safe in works of the same description as the defenders' in the district to have lids put up, and to supply them in order that they may be put up. It is a most dangerous and unusual system to work a pit without proper timber being supplied, and particularly without lids being supplied where the roof is brittle. This was known or must have been known to the said manager and fireman, and it was the duty of one or other, or both of them, to have prevented pursuer working at the place of the accident, if there was danger, until lids and props were supplied. Pursuer was not forbidden to work.” The pursuer finally detailed the injuries he had received, and stated the amount of his wages.

The defenders pleaded, inter alia, that the pursuer's statements were irrelevant.

The reference to rules 73 and 74 in condescendence 4 was in reply to the defenders' answer, in which the latter referred to the special rules for the pit in question established in terms of the Coal Mines Regulation Act 1887 (50 and 51 Vict. cap. 58), sec. 51. Special rule 73 was in the following terms—“Whether the operations shall be conducted by ‘long-wall’ or ‘stoop and room’ system, suitable timber being provided at the working-place, gate-end, pass-bye, siding, or other similar place in the mine convenient for the miners, the same shall be set up by the miners in their working-places, where the roof and sides require to be secured by them. The timber and any necessary sprags or gibs shall be set up at such times, and in such number, and at such points within the working limits as shall from time to time be necessary.” Special rule 75 provided—“If from accident or any other cause miners are at any time unable to find a sufficient supply of timber at the place appointed, they are expressly forbidden to remain in their working-places.”

On 3rd August 1897 the Sheriff-Substitute ( Mair) allowed a proof.

The defenders appealed to the Sheriff ( Berry), who on 22nd October 1897 dismissed the action as irrelevant.

Note.—“In this action at the instance of a miner against his employers, claiming damages in respect of injuries said to have been sustained by him on 3rd February 1897, through a fall from a roof of the pit in which he was working, the ground of fault alleged against the defenders is that they, or their manager or fireman, failed to

Page: 706↓

see that the roof of the pit, which was brittle and dangerous, was properly and sufficiently supported, and that they failed to supply lids and props for the use of the pursuer and other miners. It is averred that no lids were supplied, although they were asked for by the pursuer and his fellow-workmen from the fireman on 1st and 3rd February, and that the fireman promised to supply lids and props, but did not do so prior to the accident. On 3rd February, the day of the accident, the pursuer, along with another miner, had started work about six a.m., and the accident is alleged to have happened about half-past eleven. The particular place in the pit where it happened is not specified, but that it was the pursuer's working-place appears from the averments in article 6, that the fall occurred while the pursuer was engaged in work.

By special rule 73, applicable to this pit, the miners are required to set up the necessary props in their working-places, suitable timber being provided to them for the purpose. Special rule 75 provides that “if from accident or any other cause miners are at any time unable to find a sufficient supply of timber at the place appointed, they are expressly forbidden to remain in their working-places.” The pursuer acted in disobedience to this rule. On his own shewing he knew that wood was required to support the roof. He asked for it, and it was not supplied. Yet he went on to work at his working-place from six till half-past eleven in face of the rule by which he was forbidden to remain there. Even if there was fault on the part of the defenders in not supplying sufficient timber, or in the fireman failing, as it is alleged, to fulfil his promise to supply it, it was the duty of the pursuer in the circumstances to abstain from going to his working-place, or to leave it if he had already gone there. The alleged fault on the part of the fireman did not excuse a disregard of the rule on the part of the pursuer. He chose to disobey it, and to work on for hours at the insufficiently supported working-place, manifestly increasing the danger of a fall the longer he continued to work. It is alleged at the end of article 7 that the pursuer was not forbidden to work either by the manager or by the fireman, but he was forbidden by the special rule, and that was enough. The pursuer by his conduct contributed to the accident, and is not, in my opinion, entitled to hold his employers responsible.”

The pursuer appealed for jury trial to the Court of Session, and argued—An issue should be allowed. The mere fact that the pursuer had continued to work in the face of a seen danger did not imply that he relieved the defenders from all liability for their fault or negligence. It was always a jury question whether the danger was so obvious as to involve any such implication; and the case of Wallace v. Culter Paper Mills Company, Limited, June 23, 1892, 19 R. 915, in which Smith v. Baker & Sons, L.R. [1891] A.C. 325, had been followed, was not disposed of on relevancy, but was sent to a jury.

Argued for the defenders—The Sheriff was right. The pursuer in condescendence 6 insisted upon the obvious nature of the danger. In such circumstances the special rules left no room for doubt as to what his duty was, and he did not aver that these rules had not been brought to his notice.

At advising—