Scottish Court of Session Decisions

This was an action of damages brought at common law, and under the Employers Liability Act 1880, by the widow and children of Moses Hamilton, who was killed while in the employment of the defenders under the following circumstances:—Hamilton was foreman over a night-shift of labourers, who were set to ram up with sand a pit to be used for castings. The general foreman, Thomas Campbell, left him in charge of the men. giving him the usual general directions. At a little distance from the pit there was a large log of wood used for attaching heavy castings to in lifting them out of the pit. This log rested on a boiler at one end, and at the other on two stools which were set on a foundation of sand, which the pursuers alleged to have been loose. At about two o'clock in the morning the men for the first time began to dig the sand close to the foundations of the stools in order to carry it to the casting-pit, and while they were doing so the stools gave way and the log fell upon Hamilton and killed him. It was not made clear by the proof whether the digging had proceeded so far as to undermine the pillars, or had only removed the sand lying around them. The defenders sought to prove the former. The sand about these pillars was 30 yards nearer the pit at which the men were working than any other sand, but there was at that distance off sand which they might safely have used. The pillars had been placed by two men who were not examined. The foreman Campbell had given them orders to do so, but had not seen it done. They stood there for twelve days before the accident.

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The pursuers averred—“(Cond. 8) The said log of wood was not at the time lying in its usual place, where, as there was an iron plate for the columns to stand upon, it would not have fallen, and it was gross carelessness and fault in the defenders, or their said partners, or Thomas Campbell, their manager, while in the exercise of a superintendence entrusted to him, in having put, or allowed to be put, the log where it was when it fell.”

They pleaded—“(1) The said Moses Hamilton having been in the sense of the Employers Liability Act 1880 in the employment of the defenders, and having been killed through the negligence of the defenders, or of their servants in superintendence, and for whom they are responsible, the pursuers, the widow and children of the deceased, are entitled to compensation as craved, with interest and expenses. (2) The pursuers are also entitled at common law to compensation as craved.”

The defenders answered—The deceased was the only foreman of the night-shift, and had entire charge of the work after receiving general orders from Thomas Campbell before he left the works. The operations which led to the accident were done by the instructions and at the sight of the deceased, and the accident was the result of his own or his squad's gross carelessness in digging so close to the foundations of the columns.

The Sheriff-Substitute ( Lees) found that the pursuers had failed to prove that the accident occurred under circumstances inferring liability on the part of the defenders. He therefore sustained the second plea-in-law stated for them, and assoilzied them from the conclusions of the action.

“ Note.—If it be the case that the column had been undermined by the men working in Hamilton's squad, it is clear that there is no case whatever against the defenders. It is urged that this version of matters is not probable. I think that is true, but, on the other hand, it is positively spoken to, and by one of the pursuer's own witnesses. But is it clear that Hamilton, a foreman labourer, was a workman in the sense of the Act? This must depend on the circumstances of the case, and I doubt very much whether he was a person entitled to the privileges of the Employers Liability Act. But even getting over this difficulty, the pursuers have to show that there was fault on the part of a person from whom they could have recovered, and that the defenders are responsible for that person's fault. They say it was the manager Campbell. Now what did Campbell do? He told two of the men to place the pillar, and the only fault that can be alleged against him is that he did not stay by till he saw them execute this extremely easy piece of work. I have frequently held that such is not negligence. There cannot be a foreman for every simple piece of work. But more than that, it is not proved that there was anything obligatory on Campbell which he did not do, while there is strong ground for suspecting that whatever fault there was, was on the part of the men working along with Hamilton. It seems to me that the evidence does not disclose a case against the defenders.”

On appeal the Sheriff ( Clark) pronounced this interlocutor:—“Finds that the deceased was not a workman in the sense of the Employers Liability Act—being a man who had superintendence entrusted to him: Finds further that it is not proved that the deceased came by his death from any fault of the defenders or of those representing them: Finds that the allegations of fault, if they have any substance, resolve into this,— that the defenders had not given proper superintendence to the operations going forward: Finds that this is not proved, inasmuch as the deceased himself was the party charged with the duty of superintendence: Therefore adheres to the interlocutor appealed against: Finds the pursuers liable in the expenses of the appeal, and decerns.”

The pursuers appealed, and argued—This was a case exactly like the case of Pollock v. Cassidy, Feb. 26, 1870, 8 Macph. 615, in which it was held that a master is bound to take every precaution to prevent danger where the person employed is not a skilled man. The deceased was really nothing more than an ordinary labourer though foreman of the labourers on the night-shift, and not in a position to judge of the danger of the work. It was Campbell's duty to have superintended the placing of the log so as to secure it against danger, as he might easily have done.

The defenders replied — The log had been put up carefully under Campbell's direction twelve days before the accident. It was nothing but Hamilton's own rashness which had caused the downfall of the log.

At advising—