Scottish Court of Session Decisions

James Moir, contractor, had in the spring of 1884 a contract with the Marquis of Lothian for dismantling Cowden Colliery, in course of the execution of which contract he had to remove the rails of a disused line of railway. For the purposes of the contract he had the use of a crane from the Marquis. It was a single-power crane, and was guaranteed by the maker to lift 30 cwt. He used it in the manner after-mentioned to lift the rails. They were laid on iron chairs and attached to sleepers in the usual way. The crane had been used successfully in this operation for more than a month, when on 27th March, while being used to raise out of the ground a rail 30 feet in length, the jib of the crane suddenly fell and struck one of the men named Welsh, who was working at the windlass, so severely that he died in ten or fifteen minutes.

This was an action by Welsh's widow against Moir for compensation for her husband's death. Her claim not having been duly intimated in terms of the Employers Liability Act the action was at common law.

She averred that the accident was caused by the crane being defective, being used in an unsafe way for an unfit purpose, and being unable to bear the excessive strain to which it was put.

The following account of the mode of working and of the occurrence of the accident was given at the proof by Robert Joyce, one of the workmen employed at the windlass along with the deceased — “ The crane stood on a bogie; behind the bogie was a waggon, and behind the waggon a locomotive engine. The rails were lifted in this way —A hole was ‘howked’ under the rail, and the chain passed under, and twice round the rail, and then the gob of the chain was fastened on the chain, and the men began winding the crane until the rail was eased from the ground. There were four of us at the crane, two at each handle. The rails were lifted with the sleepers and everything attached. The sleepers were knocked off the rails with a hammer, and the rails hoisted into the waggon behind the bogie…. There was a sleeper every 18 inches or 2 feet. On a 30-foot rail there would be 15 sleepers at any-rate. It was a 30-foot rail the chain was hooked to at the time of the accident. The sleepers were embedded in the ground, and in general they were covered with dirt. The rails were fastened to the sleepers by iron chairs and bolts in the usual way…. On the morning of 27th March Welsh and I were at one of the handles of the crane, and Daniel Williamson and John M'Leod were at the other, and when we were lifting the rail we heard a crack, and I jumped to the bank and had just time to turn round when I saw Welsh killed. He was struck between the shoulders, or on the small of the back, by the jib of the crane. He died in about ten minutes or a quarter of an hour after the accident. He suffered a great deal in the interval. At the time of the accident we were winding the crane trying to lift the rail. The rail would barely be stirred when the accident happened; it was not off the ground. I looked at the crane after it was broken, but I did not pay much attention to it. It was the pivot that broke at the back-end furthest away from the work.” In cross-examination the same witness stated—“I don't know the weight of the rails we were lifting. The sleepers were on the ground, but some of them were pretty far into the earth. Some of them were lying on the earth, but more of them were far down. In some instances the sleepers were quite rotten, and dropped off the rails without hammering. (Q) So that it would be quite right to say that the crane lifted the rails and did not tear them up?—(A) I cannot say that; they were bound to be torn up…. We had lifted a pair of rails before the accident, and they were 30-foot rails on one side and 15-foot rails on the other. That had not caused any extra strain upon the crane, though the rails were a kind of hard to be lifted at the beginning until they were started. But they were always hard to begin; we had to use the strength of four men to start them.”

This evidence was corroborated by that of the other men who were working at the crane.

Mr Reid, an engineer, was examined. He, as well as other witnesses, proved that the immediate cause of the breaking of the crane was a latent defect in a pivot, which had probably been always there since it was cast. The pivot was inside a socket. He was of opinion that the tearing up of rails in this manner was an improper use to which to put a crane, because it was impossible to estimate the strain which was thus put upon it. His evidence on the point is quoted by Lord Young in his opinion. On the question of the amount of strain on the crane at the time he said—“I calculated that the rail and sleepers, if they had been clear of the ground, would have weighed about 17 cwt. I would not like to say whether the grip caused by the sleepers being in the ground would amount to 13 cwt.: that is a strain you cannot calculate. In ordinary practice four men would not be expected to lift much more than 12 cwt. with a crane of this kind, but if they were all pressing very hard they might raise double that. That would still leave a margin of 6 cwt…. Notwithstanding the flaw the crane must have been proved sufficient to lift 30 cwt.”

The defender deponed that previous to the accident he had already lifted 900 yards of the railway by means of the crane. He also said—“I never saw a crane on a job of the kind before. I never tested the crane, but I saw it lifting weights during the work. … It was my own idea, I daresay, the use of the crane for pulling up the rails.”

The Sheriff-Substitute ( Rutherfurd), found … that the crane “had been guaranteed by the maker to bear a strain of 30 cwt., and there was no greater strain upon it when the jib fell as aforesaid; that it had been used for raising rails in manner aforesaid during several weeks immediately preceding the 27th of March 1884 without any mishap; and that on the date mentioned it was to all appearance in sound condition: That the fall of the jib of the said crane on the 27th of March 1884 was caused by

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the breaking of a cast-iron pivot, upon which it rested, and in which after the occurrence there was found to be a latent flaw, the existence of which was not, and could not have been, discovered previously.” He found “in fact and in law that the pursuer has failed to prove that the death of the said Richard Welsh was caused by the fault of the said defender, or of any person or persons for whom he is responsible; and in law that the defender is not liable to indemnify the pursuer for the loss which she has sustained through the death of her said husband,” and therefore assoilzies the defender.

“ Note.—It was contended on the part of the pursuer that the occurrence by which her husband lost his life was the result of an improper use of the crane in the work at which he was employed, whereby the deceased was exposed to a danger which an ignorant workman could not be expected to appreciate. It certainly appears that it is unusual to employ a crane in the work in question, and according to the evidence of Mr Reid it ought not to be used for the purpose, because ‘a crane is constructed to lift a certain ascertained weight, and in tearing at a fixed object you cannot estimate the strain you are putting on the crane.’ The Sheriff-Substitute is disposed to concur in this opinion, but at the same time he thinks that at the time of the accident the crane could not have been subjected to a strain greater than it might reasonably have been expected to withstand. The crane was guaranteed by the maker to bear a strain of 30 cwt., and Mr Reid says, ‘In ordinary practice four men would not be expected to lift much more than 12 cwt. with a crane of this kind, but if they were all pressing very hard they might raise double that. That would still leave a margin of 6 cwt.’ On the occasion in question four men were engaged in working the crane—two at each handle of the windlass—and it is in evidence that it had been used for several weeks previously without any misadventure in doing the same work, and had detached rails of the same length (30 feet) as that which was being raised when the jib fell. The immediate cause of the fall of the jib was unquestionably the breaking of the cast-iron pivot on which it rested, and in which, after the occurrence, there was found to be a latent defect, the existence of which could not have been ascertained previously. Why the pivot should have given way upon this particular occasion is merely matter of conjecture, and as the evidence shows that the accident could not have happened but for the latent defect, for which the defender cannot be held responsible, the Sheriff-Substitute is of opinion that he is entitled to be assoilzied.”

The pursuer reclaimed, and argued—Fault lay with the defender either in using a crane which was defective and not fit for the work, or in putting a crane, though not defective, to a use for which it was not fitted. In either case, liability attached to him for the result of an accident by its giving way— Heske v. Samuelson, L.R., 12 Q.B.D. 30.

The defender replied—There was no impropriety in using a crane to tear up rails any more than to lift a weight as long as care was taken that no undue strain was put upon it, and it was proved that it was being worked within its guaranteed strength. If the defender used a mode of working and a machine which was capable of doing the work with reasonable safety, as the mode of working and the machine here but for the flaw were shown to have been capable of doing, and the nature of which the workman was aware, he was not liable for the injury merely because it could be shown that there was some other more perfect machine which would have done it with greater safety— Dynen v. Leach, 26 L. J., Exch. 221.

At advising—