BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom House of Lords Decisions |
||
|
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Mary Muir or Paterson and Others v. M. Wallace and Company [1854] UKHL 1_Paterson_389 (6 July 1854) URL: http://www.bailii.org/uk/cases/UKHL/1854/1_Paterson_389.html Cite as: [1854] UKHL 1_Paterson_389 |
||
[New search] [Printable PDF version] [Help]
Page: 389↓
(1854) 1 Paterson 389
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 53
Subject_Master and servant—Negligence of Master—Reparation — Question for Jury—
P., a miner, complained to S., the owner's manager, of a dangerous stone in the roof of the mine, and S. promised to remove it. While P. was working, and before its removal, the stone fell and killed him.
Held (reversing judgment), That it was for a jury to say whether the stone was left by the negligence of the owner, and whether P. was killed by its falling, and not by his own rashness.
A master is bound to protect servants employed in dangerous occupations against extraordinary danger. 1
_________________ Footnote _________________
1 See previous report 16 D. 233; 26 Sc. Jur. 123. S. C. 1 Macq. Ap. 748; 26 Sc. Jur. 550.
Page: 390↓
This was an action of damages against the proprietors of a coal pit, at the instance of the widow and children of a workman, called Robert Paterson, who was killed, on 1st December 1851, by the falling of a stone from the roof of the pit.
The case went to trial on the following issues:— “It being admitted that the pursuer, Mrs. Mary Muir or Paterson, is the widow, and that the other pursuers are the lawful children, of the said deceased Robert Paterson and Mary Muir or Paterson:
It being also admitted that the defenders are the proprietors of the coal pit at Easterhouse aforesaid, mentioned in the summons, and that they were in the occupation thereof during the year 1851:
Whether, on or about the 1st day of December 1851, the said deceased Robert Paterson, while engaged in the service of the defenders as a miner in the said pit, sustained injuries to his person, which shortly afterwards caused his death; and whether the said injuries were occasioned by reason of the unsafe and insufficient condition of the road, or main road of the said pit, in which the said deceased was engaged as aforesaid, and of the roof, or part of the roof of the said road or main road, and by the fault, negligence, or unskilfulness of the defenders, or of any person or persons for whom they are responsible, to the loss, injury and damage of the pursuers?
Damages laid at £1000.”
Evidence having been led, the following procedure took place at the trial:—“The Lord Justice Clerk told the jury that, on this evidence, he directed them that the pursuers could not recover damages.
The counsel for the pursuers excepted, and asked the Lord Justice Clerk to state to the jury in point of law— ‘that if Snedden, the defenders' manager, failed in his duty in timeously directing the stone in question to be removed, it would afford no defence to this action that Paterson continued to work after the orders for the removal of the stone had been ultimately given; and and that if Paterson so continued to work in consequence of the directions of the roadsman, the defenders are responsible for such directions;’ which he declined, in the circumstances, to state, and the pursuers' counsel excepted as aforesaid.
Thereafter the jury aforesaid, did then and there deliver their verdict, in favour of the said defenders, as follows:—‘Find for the defenders. Whereupon the said counsel, learned in the law, for the pursuers, did then and there propose the aforesaid exception to the foresaid decision of the said Lord Justice Clerk.’” The Court of Session disallowed the exception.
The pursuers appealed, and in their printed case stated the following reasons:— “1. Because it was for the jury alone to determine what were the facts proved by the evidence; and because it was incompetent for the Judge, on any views which he might himself take of the state of the facts, to withdraw the case from their consideration. The error committed in so doing was apparent on the face of the record. 2. There was miscarriage, inasmuch as the case was withdrawn from the jury; although in point of fact, there was evidence to go to them in support of the issue. 3. The assumptions of fact, upon which the presiding Judge proceeded in withdrawing the case from the jury, were not supported by the evidence. 4. Even had those assumptions of fact been supported by the evidence, the direction by the Judge was unsound. 5. In the circumstances, the Judge was in error in declining to direct the jury in the terms in which he was called upon to do so by the appellants.”
Hodgson, for appellants.—This was one of the actions enumerated in 6 Geo. IV., cap. 120, § 28, as proper to be tried by a jury. The evidence for the pursuers was such, that reasonable men might draw different conclusions from it; and such being the case, it was obviously improper for the Judge to take upon himself to say that one conclusion only could be drawn from it— Per Pollock, C.B., in Taff Vale R. Co. v. Giles, 2 E. & B. 822; Fraser v. Hill 1 Macq. Ap. 382; 25 Sc. Jur. 391; ante, p. 232. As to the law of the case, there was no real dispute, it being admitted on both sides that it is not enough to disentitle the appellants to claim damages, merely that the deceased workman was guilty of negligence.— Whitelaw v. Moffat, 12 D. 434; Rankin v. Dixon, 14 D. 420. At least the negligence here alleged was a matter of fact which a jury alone could dispose of. As the Judge therefore improperly withdrew the case from the jury, the appellants are entitled to a new trial.
Sol.-Gen. Bethell, and Bovill, for respondents.—It was quite clear from the evidence of the pursuers themselves, that the accident was entirely caused by the deceased's own rashness. Neither the law of Scotland, nor any other law, could in such circumstances hold the master liable. There was nothing to leave to the jury. The workman was not bound to go on working if he had reasonable ground of believing there was danger from the stone falling, as was decided in a case precisely similar.— M'Neill v. Wallace, 15 D. 818. But if he chose, out of mere wantonness, to do so, he cannot complain of the consequences. Besides, the exception taken by the counsel for the pursuers was not sufficiently specific, for the proper ground of the exception ought to have been stated at the time, as was seen in Bain v. Whitehaven and Furness R. Co., 7 Bell's Ap. 80. The exception pointed not, as it is now said that it did, to any conflicting evidence from which reasonable men might draw different conclusions, but to this, viz., that the Judge ought to have told the jury, in point of law, that if the stone was not timeously
Page: 391↓
My Lords, this question arises upon an action which was brought by the representatives of a deceased workman to recover compensation, in consequence of the death of the deceased having been occasioned, as it is said, by the default of his master, under such circumstances as made the master responsible. The law of Scotland is admitted on all hands to be this—and I believe it to be entirely conformable to the law of England also—that where a master is employing a servant in a work, particularly work of a dangerous character, he is bound to take all reasonable precautions that there shall be no extraordinary danger incurred by the workman. A case has been put by Mr. Bovill of a rope going down to a mine. I take it, that in England, just as in Scotland, if the master of a man negligently puts a rope that is so defective that it will break with the weight of a man upon it, he is responsible to the workman, just as he would be responsible for his negligence to a stranger. It has been decided, according to my recollection, in England, that masters are liable to strangers for all accidents which occur by negligence on the part of their servants. The case is different where the master is employing several servants, and employing competent persons. In that case, suppose an accident happens to one of them, owing to the neglect of another servant, I think it has been determined in the Courts in England, that the master is not responsible. I thought this was a case of that sort, when I intimated that there might be a difference between the law of Scotland and the law of England upon this subject, but in the actual state of the case I do not believe there is any difference at all. I believe, by the law of England, just as by the law of Scotland, in the actual state of the case with which we have to deal here, a master employing servants upon any work, particularly a dangerous work of this sort, is bound to take care that he does not induce them to work under the notion that they are working with good and sufficient tackle, whilst he is employing improper tackle, and being guilty of negligence, his negligence occasioning loss to them. That, however, is generally admitted on all hands to be the law of Scotland.
My Lords, this action was brought upon this ground, that this unfortunate man had come by his death by reason of the masters, through their agents, having carelessly left a very large stone in the roof of a mine in so dangerous a position, that the workman, when engaged in digging out the coal, owing to their negligence, lost his life. There being no doubt that the poor man did lose his life by this great stone falling upon him, which killed him on the spot, in order to recover damages the family must establish two propositions. First of all, they must shew that that stone was in a position in which it was dangerous, owing to the negligence of the master; and next, that the workman whose life was forfeited lost it owing to that negligence, and not to his own rashness. It is said, that by the law of Scotland the master is bound to provide against the rashness of the workmen, and I see in one of the learned Judge's opinions an expression which might give countenance to such a notion. That is evidently a proposition which, as matter of law, can never be sustained. In England, in Scotland, and in every civilized country, a party who rushes into danger himself, cannot say—“that is owing to your negligence.” As a question of fact, it may very well be laid down, that that which would be negligence, and reasonably treated as rashness, in other persons, may not be fairly treated as rashness in a workman, if his master knows that such conduct is what workmen ordinarily pursue. That is all the learned Judge could have meant. The pursuers here must make out that the deceased came to his death owing to the stone in question having been improperly left to remain where it was, being dangerous to the persons who should work in the pit. Secondly, that the party has come to his death in consequence of that negligence, and not by his own rashness.
Now, to establish these two propositions, several witnesses were called. The first witness was
Page: 392↓
What the pursuers had to make out were two propositions, as I have already stated,— First, That the stone had been negligently suffered to remain too long without being removed or being propped. They said it was not a stone that could be propped, and therefore it must be removed. Secondly, That Paterson lost his life, not by his own rashness in passing under that stone before it was removed, but by reason of the negligence of the master, or the negligence, we may say, of Snedden.
Now, my Lords, it is not for your Lordships or for the Court below to say what would be the conclusion at which the jury would arrive or ought to arrive upon that evidence. Upon those two propositions all that your Lordships have to say is, or the Court below had to say was—Is there evidence that may by possibility justly lead them to a conclusion in favour of the plaintiffs upon both these propositions? Is there evidence which might reasonably lead them to come to a conclusion that this stone was there improperly, owing to the negligence of the master? and, secondly, that there was no extraordinary rashness in Paterson's carrying his load of coals under it before it was removed? Then there was evidence of the stone being dangerously left, or rather improperly left, which is unfortunately too clear from the fact that it did fall and kill one of the workmen. There is abundant evidence on that subject. The only other evidence, therefore, which it was necessary for the plaintiffs to lay before the jury was, that the stone falling upon him and killing him was the result of his fairly trusting that all was safe, and not of his own rashness in going when he had been warned not to go. My Lords, it is sufficient to say upon that subject that there is a conflict of testimony. Lord Cockburn remarked that the Lord Justice Clerk, who tried the case, had the benefit of seeing the demeanour of the witnesses. He clearly had. But how do we know that, from the demeanour of the witnesses, the jury might not have come to the conclusion that all the evidence was concocted evidence—that it was not to be trusted? If the witnesses said anything about rashness on the part of Paterson, the jury might have come to the conclusion that Snedden had told him there was no real danger, but he would have it removed to satisfy all scruples. That is the conclusion to which the jury might have arrived—there was plenty of evidence of it—there was that evidence to which I have already adverted, and if there was any evidence, that is quite sufficient. If I were asked upon this case to come to a conclusion upon this written evidence, whether there was rashness or not, I believe the evidence in favour of rashness on the part of Paterson strongly preponderates. I am not the jury, and your Lordships now representing the Court are not the jury. The question is—What ought to have been said by the Judge to the jury after this evidence had been given? To my mind, it is perfectly clear that it was his duty to point out to them the evidence which bore upon those two propositions, whether there had been a want of timeous removal, as they call it, upon the part of the master? If you are satisfied that there was want of timeous removal, then are you satisfied that Paterson came by his death, not owing to his own extraordinary rashness, but owing to his having so implicitly relied upon the assurances which were given to him by Snedden? That is the direction which ought to have been given; then, whichever way the jury had found, probably there would have been nothing upon the face of the record to lead to the conclusion that the evidence was wrong either one way or the other. If there was anything wrong, it would have been set aside by a new trial, and not by a bill of exceptions. It appears to me, therefore, that that is the direction which ought to have been given. The only remaining question is—Whether there is such an exception as, in the first instance, fairly to bring the matter under the consideration of the Court below, and now before your Lordships? My Lords, upon that subject I confess I cannot entertain any doubt, and therefore I have the less scruple, because I have the satisfaction of concurring with both the learned Judges whose opinions are given at length. Lord Murray having concurred, or not having, so far as is reported, said anything to shew that
Page: 393↓
It appears to me, therefore, there was ample exception, simply upon the ground that the learned Judge was wrong in saying to the jury, that there was no case for them, and that they must find for the defendants. But if that had not been so, if you scan this second exception, though I think the latter part of it is wrong, the former part is not at all wrong, though we do not know whether or not it is bad law. This is what the pursuers' counsel says the learned Judge ought to have laid down (I do not know that it is necessary for him, but it is no bad law,) viz., “If Snedden, the defenders' manager, failed in his duty in timeously directing the stone in question to be removed, it would afford no defence to this action that Paterson continued to work, after orders for the removal of the stone had been ultimately given.” I certainly think, my Lords, that is perfectly good law. Let me assume the master to have been guilty of negligence in not timeously removing this stone, then all the rest of the evidence being true, (and it was, in point of fact, the truth that Snedden told the man that he might go on safely,) it does not follow that he is excluded, or that his widow is excluded from relief, because he went on to work before it was removed. Then the exception goes on,— “If Paterson continued so to work in consequence of the directions of the roadsman, the defenders are responsible for such directions.” That, I think, is wrong—at least we have no evidence what is the character of a roadsman; that would require further explanation. If a roadsman is, according to the rules and regulations of Scotch mines, a person whose province it is to direct the workmen whether they may safely work or not, that may be very good law. We have no explanation upon that subject, and it may be taken, if you please, to be good or bad law. I agree with Lord Cockburn, that what is alleged by the pursuers' counsel as being something which the learned Judge ought to have said, is totally immaterial. If the learned Judge said something which he ought not to have said, it has been excepted to by his case.
My Lords, it appears to me, upon the whole, with all deference to the learned Judges, quite clear, that they have misunderstood the province of a Judge in a trial of this sort. He ought to have laid down to the jury what were the propositions, in point of fact, which the pursuers ought to have proved, in order to entitle them to a verdict. That consisted in two facts—first, whether there had been negligence; next, if the accident was the result of that negligence, and not the result of unjustifiable rashness. If they were satisfied on both of those points, the pursuers were entitled to recover. If the pursuers failed to prove either of those points, the defenders were entitled to a verdict. He might have added his opinion, that the weight of evidence was irresistibly strong upon the part of the defenders, but that, after all, would be a question for them to decide.
My Lords, as it is the opinion of my noble and learned friend, that this interlocutor overruling
Page: 394↓
My Lords, no person can read the evidence of Bernard O'Neill, together with the rest of the evidence, and not have a very strong opinion as to the delay which was interposed by the company, or by Snedden, the manager of the company, for whom the company undoubtedly are responsible in this respect, though we, as my noble and learned friend has justly said, know too little of what a roadsman is, to accurately ascertain how far the company are responsible for what the roadsman did or omitted to do. Snedden was the manager of the company, and, beyond all doubt, for his negligence the company are answerable. It is clear to me, upon reading this evidence, that he did not take proper precautions with respect to the stone—that Bernard O'Neill, who had got directions, had not got such directions as to make him speedily remove it. He says— “I did not go to take it down—I got an empty hutch for him, (that is, for Paterson,) and both went in together. He yoked to fill hutch and take away coal. I told him to do so first —then when filled, I intended to take down the stone, but it fell first.” It is quite clear that they had not seen the danger, as appears by what Snedden said to Paterson, in a right point of view; though what Snedden observed with respect to Paterson making his bed, did not apply to that stone in particular, it applied to the general state of the roof. They felt a great deal too much confidence in the roof to make them give the directions which they ought to have given. (H is Lordship then said, he hoped what he had said would induce the defenders to avoid a new trial, by making a timely offer to the appellants.)
Hogdson asked for the costs which the appellants had incurred in the Court below, by reason of the exceptions being wrongly disallowed, and said that costs had been allowed in Fraser v. Hill, ante, p. 232.
Bovill, contra.—In case of bills of exceptions there are never any costs given, whether the party excepting succeeds or not. In Fraser v. Hill the Court below had allowed the exceptions, but this House disallowed them, the consequence of which was that then the verdict stood.
Lord Chancellor.—Yes, that was so; upon the disallowance there may be costs, but there are no costs upon the allowance of the exceptions, because they question something which the Judge has done, and it is the fault of the Judge. The cause will be remitted back to the Court of Session, with a declaration that the exceptions ought to have been allowed.
Interlocutors reversed, and cause remitted with a declaration.
Solicitors: Alexander Simson, Appellants' Solicitor.— Robertson and Simson, Respondents' Solicitors.
