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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hunter v. Grieve. (Ante, vol. iv. 237.) [1867] ScotLR 5_149 (7 January 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0149.html Cite as: [1867] ScotLR 5_149, [1867] SLR 5_149 |
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Page: 149↓
(Ante, vol. iv. 237.)
Motion for a rule, on the grounds (1) of want of evidence of fault on part of defender, and (2) that deceased materially contributed to cause his own death, refused.
Archibald Hunter, potter, Millerhill, sued John Grieve, Bank Park, near Tranent, for damages for the death of his son. The case was tried before Lord Ormidale at last July sittings, on the following issue:—
“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 stopping 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.
The jury returned a verdict for the pursuer, and assessed the damages at £64.
J. C. Smith, for defender, moved for a rule. He cited Cook v. Bell, 28th Nov. 1857, 20 D. 137, op. of Lord Colonsay, 143; and M'Naughton v. Caledonian Railway Company, 17th Dec. 1858, 21 D. 160.
Lord President—The question in this case is whether the death of Hunter was caused by the fault of the defender, and the ground of fault which is suggested in the issue is the want of a checkblock, or other sufficient means for stopping the hutch which the deceased was propelling along the chamber leading into the main road or incline. Now, the jury having found for the pursuer, it has been contended by the defender that, on two grounds mainly, the verdict is against evidence. In the first place, it is contended that there was no fault on the part of the defender, or evidence of any negligence on his part, leading to the death of the deceased. And, in the second place, it is contended that, supposing there was some negligence on the part of the defender, there was also some negligence or recklessness on the part of the deceased, contributing materially to bring about his death. I am not for disturbing the verdict on either ground. I think there was evidence of negligence to go to the jury, evidence of a kind suitable for their consideration. The work in which Hunter was engaged involved considerable risk. That was so from the very nature of the work, which fell sometimes to be performed by men accustomed to it, and sometimes by persons coming newly to it and knowing nothing of the way of working. Looking to the position of the pit, and the way of working, it is difficult to say that it was not part of the duty of the master to provide some precautions for preventing this accident. Various precautions were suggested; the jury had them before them, and they have come to the conclusion that there was some negligence on the part of the defenders. It is not necessary for the Court to say whether they agree exactly with the jury; but, it being a jury question, if I were doubtful, I should hold that to be a sufficient reason for not granting the rule.
As to the other point, that the deceased contributed in some material way to produce his own death, we must assume, and, indeed, it was conceded by the defender, that, so far as the law is concerned, the case was quite properly left in the hands of the jury by the presiding judge, with directions in accordance with Macnaughton. The jury were told that, oven assuming there was some negligence on the part of the defender, yet if it was
Page: 150↓
The other judges concurred.
Rule refused.
Solicitors: Agent for Defender— Alexander Stevenson, W.S.
