Scottish Court of Session Decisions

This was an action at the instance of Matthew Cummings, contractor, formerly residing at Swinhill Terrace, near Larkhall, against the Darngavil Coal Company, Limited, owners of Swinhill collieries, in which the pursuer sought to recover damages in respect of personal injuries sustained by his pupil son Robert Shearer Cummings.

The pursuer averred—“(Cond. 2) For the purpose of hauling waggons in connection with the work at Swinhill collieries the defenders use a horizontal wheel. This wheel is about 3 1 2 feet in diameter, and turns upon a post at a height of about 18 inches from the ground. Round its circumference there is a groove into which is fitted the wire rope made use of in the haulage operations. The wheel is generally not in motion, but is made use of for short periods on an average five times a day. It is set in motion by means of a drum at the foresaid pit-head, from which it is distant about 70 yards, and without any warning being given. No guard or protection was over the said wheel. The said wheel and rope belong to defenders. (Cond. 3) The said wheel is in waste ground, on two sides of which is a public road immediately adjoining Swinhill Terrace. The distance between the foresaid wheel and this public road is 18 1 2 yards, and its distance from Swinhill Terrace is 50 yards. The ground in which said wheel is placed is not separated from the public road by a wall or fence, but here and there are the remains of a hedge with large gaps between, said gaps extending in some cases to 23 feet. There are cart tracks through said gaps, and the gaps are used among others by the miners at Swinhill Terrace going to and from their work at the defenders' colliery, and by children and others, who have for years used the said ground as a playground, and that with the sanction and approval of the defenders. (Cond. 4) On 7th August 1901 the pursuer's said son Robert, who

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was eight years of age, was playing on the ground where said wheel is situated, and while beside said wheel it was, without any warning being given, set in motion, and his right leg was caught between the foresaid rope and the wheel, and he was severely injured. (Cond. 5) The foresaid accident was due to the fault of the defenders, or of those for whom they are responsible. The children resident in Swinhill Terrace were in the habit of playing on and about said wheel, and of floating rafts in the larger of two small ponds situated within a few yards of said wheel, and the defenders were well aware of this, and never raised any objection thereto. Indeed, the said ground had for many years been looked upon by the defenders and their miners as the playground of the village children, and used as such. Swinhill Terrace is occupied by men in the employment of the defenders, and belongs to them. About a fortnight prior to the foresaid accident another child, a daughter of Mr Thomas Hughes, Shawsburn, Larkhall, had two of her fingers taken off by this same wheel, and this was well known to the defenders and their managers and superintendents. If the defenders objected to the use made by the public of the said ground, which however they did not, it was their duty to have the said ground fenced off from the public road so as to prevent children straying from the public road into the foresaid ground. In any case they ought to have had a fence put round a wheel placed in open waste ground and so close to the public highway, and which constituted a great danger to the public and particularly to young people. Further, in any event it was their duty to have had a cover or guard placed over said wheel, and to have taken care that said wheel was not set in motion without a proper warning being given. If these precautions had been taken the foresaid accident would not have happened. It was gross fault on the part of the defenders to have such an unprotected wheel, which was set in motion several times a day, at various times, for short periods, and without notice, in ground adjoining a public road, and known by them to be the daily resort of children and others for the purposes of play. Their said fault was the direct cause of the injuries to the pursuer's son. Immediately after the said accident to pursuer's son the defenders caused the said wheel to be enclosed in a wooden cover, and the gaps in the hedge facing Swinhill Terrace to be filled up with a wooden fence, and such precautions ought to have been taken long ago, and were absolutely necessary for the safety of the public.”

The defenders denied fault, and pleaded—“(1) The averments of the pursuer being irrelevant, the action ought to be dismissed.”

On 13th December 1902 the Lord Ordinary ( Stormonth Darling) approved of an issue for the trial of the cause.

Opinion.—“I confess that, if I had been considering this case apart from decision, I should have been disposed to hold the pursuer's averments irrelevant, because the ordinary rule, as I understand it, is that trespassers on private ground must take their risk of injury from anything they find there, and that mere knowledge on the part of an owner that his property is being used as a playground for children does not by itself infer liability for injury sustained by them. But undoubtedly a very slight variation in the facts of any particular case may make all the difference, and the extreme fineness of the lines which divide relevancy from irrevelancy is illustrated by comparing the cases of Innes, 3 F. 335, and Devlin, decided 18th November 1902, and at present reported only in 10 S.L.T. p. 375. The case of Innes was one where a child was killed while playing with other children on a private siding, and the action was found relevant. I have difficulty in distinguishing that case from the present, because this also is the case of a child playing on a railway lye in the immediate vicinity of a row of miner's houses, and the injury is said to have been caused by the defenders' servants having suddenly and without warning set in motion a horizontal wheel used in connection with their railway waggons. Something may turn on the precise way in which the evidence comes out, and I shall therefore allow the issue as proposed.”

The defenders reclaimed, and argued—The case could not be distinguished from Devlin v. Jeffray's Trustees, November 18, 1902, 40 S.L.R. 92. The case of Innes v. Fife Coal Company, January 10, 1901, 3 F. 335, 38 S.L.R. 239, was distinguished from the present by the proximity of the locus in that case to the house in which the injured child resided; and in the case of Hamilton v. Hermand Oil Company, July 18, 1893, 20 R. 995, 30 S.L.R. 854, the pursuer resided inside the defenders' works. There was no duty on the part of the defenders to protect the pursuer's child from danger in a place where he had no right to be. The pursuer having allowed his child to play in a dangerous place had taken the risk upon himself, and freed the defenders from responsibility; so far as they were concerned the wheel in question was reasonably safe, having regard to its distance from the road— Black v. Caddell, February 9, 1804, M. 13,905. The cases cited contra had no application.

Argued for the pursuer—The question whether the pursuer's child had a right to be near the wheel was no test; there was a reasonable invitation, the place having been used by children as a playground without objection on the part of the defenders, who were bound to protect them— Messer v. Cranston & Company, October 15, 1897, 25 R. 7, 35 S.L.R. 42. The absence of warning was sufficient to establish the relevancy of the case— Haughton v. North British Railway Company, November 29, 1892, 20 R. 113, 30 S.L.R. 111. The defenders had not used reasonable precautions— Galloway v. King, June 11, 1872, 10 Macph. 788, 9 S.L.R. 500. The case should be sent to a jury.