Scottish Court of Session Decisions

John Snedden, miner, Coatbridge, brought an action in the Sheriff Court at Glasgow against James Nimmo & Company, Limited, coalmasters, Glasgow, and lessees of a coalpit at Easter Glentore, Airdrie, concluding for £500 as damages for the death of his daughter.

In this action the pursuer made the following averments:—“(Cond. 2) The pursuer's child Mary Snedden, who was four years of age, resided for some time prior to the accident after condescended on with John Whitelaw, at Easter Glentore aforesaid. The house in which she lived formed one of a row which faced the colliery belonging to the defenders. Between this colliery and the said houses, which were also the property of the defenders, there is a waste piece of land through which a burn runs parallel to the said row of houses. The said waste piece of ground adjoins the public road from Greengairs, and is not fenced off from the road or from the houses in any way. At right angles to the said burn and running into it is a ditch which has been made by the defenders for the purpose of carrying off waste water from their boilers. Except when used by the defenders for this purpose the said ditch is dry. From the said houses to the public road there is a footpath through the said waste piece of land which crosses the said burn and the said ditch diagonally, persons using said footpath having to step over the burn and ditch, The said path is in everyday use by the defenders' tenants and others, an I the children residing in the said houses are in the habit of playing on the said piece of ground with the knowledge and approval of the defenders. The said ditch is not fenced in any way from the footpath. (Cond. 3) At intervals the defenders are in the habit of emptying their boilers into the said ditch and thence into the burn. The water on these occasions passes down the ditch in or near a boiling condition. (Cond. 4) On or about the 7th day of June 1902, at about seven p.m., the pursuer's said child Mary Snedden, along with another girl named Annie Grant Roy, was proceeding from the said houses by means of the said path to the public road. At this time the defenders were emptying their boilers into the ditch, and the pursuer's said child and her companion missed their footing and fell into the ditch. They were both terribly scalded, and died the following morning as the result of the injuries they sustained. (Cond. 5) The said accident was caused through the fault of the defenders. Owing to the high temperature of the water in the ditch clouds of steam arose, making it difficult for passengers to see it or the banks of the ditch. It was manifestly dangerous to run water at such a temperature down a ditch crossed by a public footpath, and in the neighbourhood of which children were in the habit of playing, as was done by the defenders. It was their duty to have retained the water in a tank or settling pond, or to have mixed it with cold water until the temperature was sufficiently lowered to allow it to be discharged with safety. They have since the accident carried off the said boiling water into another channel, where it is mixed with the cold water pumped out of the shaft, and is thus rendered harmless. Had they taken either of these precautions prior to the accident, as it was their duty to have done, the said accident would not have happened. It is believed and averred that the said children failed to pass the ditch in safety in consequence of the said clouds of steam. (Cond. 6) It was further the duty of the defenders, if they persisted in the dangerous practice of so using the said ditch, to have taken due precautions for the safety of those who used the said path and the said piece of waste ground. It was their duty to have fenced or covered in the said ditch securely, so as to prevent the possibility of anyone whose view was obscured by the steam from stepping into it, or to have stationed a watchman to keep off children while hot water was being run down the ditch. This duty, however, they also failed to perform, and the accident to the pursuer's said child was the result. Had they fenced the said ditch or stationed a watchman, as aforesaid, the accident would not have happened.”

The defenders pleaded (1) that the action was irrelevant.

On 23rd March 1903 the Sheriff-Substitute ( Balfour) sustained the first plea-in-law for the defenders and dismissed the action.

“ Note.—This is a case in which an accident resulting in death happened to a child of four years of age. The child lived in a house in a row facing the defenders' colliery, and between the colliery and the row of houses there is a waste piece of land through which a burn runs. At right angles to the burn and running into it there is a ditch which has been made for the purpose of carrying off waste water from the defenders' boilers. There is a regular private road running from the row of houses to the public road leading from Longriggend to Easter Glentore, by which access is had from the row of houses to the defenders' colliery, but there is a short cut across the waste piece of ground from the houses to the colliery, and persons using it have to cross the burn and the ditch. The pursuer's daughter was crossing this waste piece of ground along with a companion, and they both fell into the ditch. The waste piece of ground does not belong to the defenders, but is held on lease by a farmer, and the tenants in the row of houses have no right to use the waste piece of ground as a short cut.

Page: 752↓

This action is based on the alleged fault of the defenders in running boiling water into the ditch, in consequence of which the pursuer's daughter was scalded, and in failing to fence the ditch in the waste ground.

There have been several recent cases in the Court of Session on the same subject, dealing with the liability of proprietors for accidents occurring under the same or similar circumstances, but the most recent case was decided in the Court of Session on 17th March 1903, viz., Roy v. Nimmo & Company, which was an action raised by the father of the other girl who was scalded at the same time as the pursuer's daughter. That case was dismissed on the ground of the defenders not being the owners of the field, and that there was no obligation on them to fence the burn at a place which was not within the lands they occupied.”

The pursuer appealed, and argued—The action setforth relevant grounds of liability. If a man made a place dangerous, which would otherwise have been safe, he was liable for the consequences to anyone who was lawfully there, even although he was not the owner of the ground where he caused the danger— Campbell v. Ord & Maddison, November 5, 1873, 1 R. 149, 11 S.L.R. 54, 105; Findlay v. Angus, January 14, 1887, 14 R. 312, 24 S.L.R. 237; Nelson v. Lanarkshire Road Trustees, December 11, 1891, 19 R. 311, 29 S.L.R. 261; Gibson v. Glasgow Police Commissioners, March 3, 1893, 20 R. 466, 30 S.L.R. 469; Messer v. Cranston & Company, October 15, 1897, 25 R. 7, 35 S.L.R. 42, 58; Corby v. Hill, 1858, 4 C.B. (N.S.) 556; Hill v. New River Company, 1868, 9 B. & S. 303; Clark v. Chambers, 1878, 3 QBD 327. [The Lord President referred to Innes v. Fife Coal Company, Limited, January 10, 1901, 3 F. 335, 38 S.L.R. 239.]

Counsel for the respondents were not called upon.