Scottish Court of Session Decisions

The pursuer in this action was Archibald Hunter, potter, Millerhill, and the defender was John Grieve, Bank Park, near Tranent. The case arose out of the following circumstances:—

The pursuer's son, Archibald Hunter, had, according to the statement of the pursuer, been employed by the defender, on the 7th January last, to work in one of the defender's coal-pits as a drawer. On the day after the pursuer's son commenced work in the pit, and while he was engaged in propelling a loaded hutch along the rails of one of the chambers of the pit to the mainway at the entrance to the chamber, a carriage which was ascending the mainway had not reached the chamber, and the chamber being dark, and the pursuer's son being behind the hutch which he was propelling, he could not see that the carriage was not at the entrance to the chamber, and on reaching the entrance the hutch went down the mainway or shaft, carrying the pursuer's son along with it, and he was killed on the soot. The pursuer alleged that, owing to the gross negligence of the defender, or of those for whom he was responsible, there were no check-blocks at the termination of the rails at the entrance to the chamber, and that it was entirely in consequence of this that his son and the hutch fell down the shaft. The pursuer further alleged that the deceased Archibald Hunter had never been employed at a coal-pit until a day or two before his death. The day on which he met with his death was the first day he was ever down the pit. The deceased did not know what was requisite with regard to machinery for the safety of workmen employed in a pit. In particular, he did not know of the danger which the absence of check-blocks at the entrance of each chamber caused to the workmen employed in driving the hutches along the rails of the chamber on to the carriage in manner above mentioned. He did not even know that there were no check-blocks at the entrance to the said chamber. When the deceased, accordingly, met with his death, he had not gone into any danger of whose existence he was aware. Shortly after the deceased Archibald Hunter was killed, check-blocks were placed at the entrance of all the rooms or chambers in the defender's pit.

The defender, on the other hand, denied that the pursuer's son was in his employment, maintaining that he was employed by George Beveridge, a collier, to act as his drawer and assistant, and was to be paid by him. He further alleged that the death of Archibald Hunter was owing either to his own fault or to some unavoidable and unexplained accident, no similar accident having ever happened in any of the defender's pits, though all the drawers ran the same risk as Archibald Hunter did. The deceased was warned of the risk by George Beveridge, his employer and master, and instructed by him as to the necessity of stopping his hutch short of the mainway, and shown the method of doing so—the method being to lay an iron rail, which was there for the purpose, with one end of it against a wooden pillar forming the upper side of the mouth of the chamber, and the other end of it on the rail at the same side, so as to stop the wheel of the hutch. The said rail, so placed, served the same purpose as a check-block. Hunter had gone several times quite safely with hutches to the mainway before he was killed. The road was level, and had he been careful there was no danger. It was dark, as other underground ways are; but it was the duty of Archibald Hunter, as it is of all others employed in mines, to carry a lamp; and, in point of fact, he was carrying a lighted lamp at the time he fell in. Mr Ralph Moore, the Government Inspector of Mines, instituted an inquiry into the death of Hunter, and came to the conclusion that his death was caused by his failure to obey the instructions given him. The road in the chamber being level, a hutch could be stopped in a few feet. No check-block is necessary for a drawer who is moderately careful, and check-blocks are not in use in mines at all, except in the defender's since the death of Hunter. After the death of Hunter, the defender, being desirous to do all he could to save even the rash and careless from danger, fastened one end of the iron bar, which had formerly been loose, by a bolt by the side of the right-hand rail, so that it can be turned round and brought across the rails. If it be so

Page: 238↓

turned round, it will stop a hutch moving at a moderate speed just as the loose rail would have done. But the drawers who are accustomed to the chamber never use these iron bars, which the pursuer calls check-blocks. They prefer taking the risk of not using them to taking the trouble of opening and shutting them.

The issue was:—

“Whether, on or about 8th January 1867, the deceased Archibald Hunter, when in the employment of the defender, while propelling a loaded hutch along one of the chambers of a coal-pit belonging to the defender, was killed by falling down the shaft of said coal-pit, owing to check-blocks, or other sufficient means for stoping the said hutch, not being provided, through the fault of the defender, to the loss, injury, and damage of the pursuer?

Damages laid at £500 sterling.”

The jury, after an absence of three hours, returned a verdict for the pursuer by a majority of 9 to 8. Damages were assessed at £64.