Scottish Court of Session Decisions

This was an action at the instance of Hugh M'Gee against the Eglinton Iron Company to recover damages for personal injuries sustained by him while in their employment.

The pursuer averred that for eight years previous to 7th June 1883, the date of the accident, he had acted as a screenman in the service of the defenders at one of their pits.

“(Cond. 2) …. In the working of this pit, waggons were loaded with coal at the scree or pit—mouth, and then sent down a railway incline to a point where the rails joined the main line of the railway company, from whence the waggons were taken by the railway company's engines. The pursuer's duty, along with other screenmen, was to stop the waggons while going down the incline as after mentioned, this being effected partly by inserting between the spokes of the waggon wheels wooden poles or trees, called ‘sprags,’ each about two and a half feet in length, and which require to be of a particular shape, about five or six inches in diameter, sharp at both ends, and made of strong, hard wood, which when inserted act as additional brakes in controlling the speed of the waggons or stopping them. The waggons were loaded and stopped in the manner now to be explained. A number of empty waggons, usually about ten or twelve, were driven up the incline by the railway company's engine some distance beyond the pit-mouth or ‘scree,’ where the waggons were loaded, and each waggon was then brought down to the pit-mouth, and there loaded. The first loaded waggon was then sent down the incline, the screenman being on the waggon, applying the lever brake of the waggon, and thereby stopping it at such a distance from the pit-mouth as to allow the other waggons in succession to be sent down to the first, so as altogether to form a train. The first waggon was secured partly by the brake and by a piece of wood or clog placed before the front wheels, and by the insertion of sprags between the spokes of the wheels on one side of the waggon. The other loaded waggons were then braked and spragged, but not clogged, and when the others were together as a train the obstructions were removed and the train taken down the incline to the main line of railway, as already mentioned. (Cond. 3) For some time previous to the end of May 1882, instead of proper working sprags, the pursuer was furnished by the defenders with pieces of wood called ‘propwood,’ made and used for supporting the roof of the workings of the pit. This wood being greenwood was not strong enough, was not of the proper shape, was of too great length, and in these respects was insufficient and unsuited for the work. Besides, while the proper sprags could be and were worked with one hand, the insufficient sprags could only be worked with two hands, whereby the work was rendered more dangerous. Accordingly in that month the pursuer intimated to the pitheadman Mr John Duffy, who was also the defenders’ foreman over the screenmen, for whom the defenders were responsible, that there were no sprags, and requested him to order them, which it is understood he did. Duffy, however, who left the defenders’ works on or about 20th May last, and is now believed to be resident in America, was succeeded shortly thereafter by Mr Felix Kelly as the defenders’ pitheadman and foreman, for whom they were responsible, to whom the pursuer also, on or about the 27th of that month, made a similar intimation, when Kelly promised to have proper sprags supplied. A few days afterwards, on the pursuer asking Kelly if these had been ordered, he replied that he was informed in the defenders’ works that there was no wood fit for making sprags. Consequently the pursuer had still to work with this propwood, as ordered by Kelly. In answer to the counter statement, it is admitted that the pursuer was well acquainted with the work and the sprags required. (Cond. 4) On the 7th day of June 1882, and when the pursuer went to his work about six o'clock in the morning of that day, there were on the incline two or three loaded waggons which had been clogged and spragged and left on the incline the previous afternoon; but this was not done by the pursuer. In the course of said morning seven or eight additional waggons were loaded and sent down to the other two or three then already on the incline, each of these additional waggons having been taken down by the pursuer in the usual discharge of his duty, and under the foreman's supervision. When the whole were joined together it was found that there was no room left for other two or three waggons which were being loaded or had to be loaded to form part of the train. The foreman Kelly then ordered the pursuer to move the train farther down the incline. The pursuer, as ordered, removed all the obstructions from the front loaded waggon (the only one secured), with the exception of one sprag, which stuck fast and could not be removed, owing to its improper shape and material and other deficiencies, this sprag being one of the pieces of propwood already mentioned. Kelly, observing this, ordered William Wardrop, another screenman, to run down one of the empty waggons standing on the ‘lye’ against the loaded waggons on the incline, so as

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by the force of the concussion to put them in motion, which was done. When the waggons had got sufficiently far down to make room for the additional waggons in the course of being loaded, the pursuer, in the discharge of his duty, and with the knowledge and authority of the foreman, endeavoured to sprag and stop the moving train in the usual way, by inserting two pieces of the propwood as sprags into each of two wheels of one or two of the waggons. This not succeeding in stopping the train, the pursuer then inserted a third piece of propwood as a sprag into one of the wheels, while the train was still in motion; but from its unfitness for its purpose the propwood did not grip sufficiently, and while the pursuer was still struggling to make it grip and stop the waggons, it came violently against him, with all the force of the moving waggons, struck him on the side and knocked him down, throwing him with great force against the side of one of the waggons. The wheel or wheels of one or more of the waggons passed over his right foot, which was so severely bruised and injured thereby that it had to be amputated, and three of his ribs were broken.”

The pursuer further averred that his injuries were caused by the insufficiency and unsuitableness of the wood supplied to him for sprags, which was not of sufficient hardness and strength, was of clumsy shape, and too long and thick, and did not grip sufficiently, and that defenders culpably neglected or failed to supply proper sprags to enable him properly and safely to discharge his duty, and to the want of which he attributed his injuries.

The defenders pleaded—“(1) The pursuer's statements are irrelevant.”