Scottish Court of Session Decisions

This was an action of damages at common law, and alternatively under the Employers Liability Act 1880, against the. North British Railway Company at the instance of the widow and children of Andrew M'Ghie, an engine-driver, who when driving an engine attached to a passenger train on the defenders'line between Edinburgh

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and glasgow ( via Bathgate), was killed in consequence of his head coming in contact with the side of the arch of a bridge called the “Red Bridge,” near Sunnyside Station.

The pursuers stated that the engine deceased was driving was not his ordinary engine, which had a Westinghouse brake, but one of an obsolete type, fitted with hand brakes; that the wooden blocks of these brakes had shortly before the accident been worn out and renewed, making it the more necessary for the driver to take care to see that the brakes worked properly.“(Cond. 4) The train was descending an incline near Sunnyside Station aforesaid, and it was in accordance with his duty and imperative by the rules of the defenders’ service that he should see that the brakes were acting properly. While the deceased was leaning over the side of his engine in the performance of his duty, as above set forth, for the said purpose, and having his face necessarily turned from the direction in which he was going, his head came into violent contact with the stone-work of the said bridge, and injuries were inflicted which then or soon thereafter caused the death of the said Andrew M'Ghie. The death of the said Andrew M'Ghie was caused by the fault of the defenders in having the said bridge dangerously and unusually narrow. Had it been of the ordinary width the accident would not have happened. Further, the defenders were to blame in not warning their servants, and among others the said Andrew M'Ghie, of the undue and unusual narrowness of the said bridge. It was quite easy for them to have given such warning, and since the accident they have in fact done so. By their rules it is provided that engine-drivers before commencing their day's work must ascertain from the notices posted for their guidance if there be anything requiring their special attention on those parts of the line over which they have to work. Had a notice of the dangerous condition of the said bridge been posted as indicated in the said rule, it would have been seen by the said Andrew M'Ghie, and the accident would have been avoided.” They also stated (Cond. 5) that the space between the outside rail and the stone-work of the bridge was only three feet and one half-inch, and after deducting the space which the engine overlapped it, there were only two feet between the engine and the bridge, and this space was over four inches too narrow for the limits of safety as defined in the schedule of important Requirements issued as a memorandum by the Board of Trade in December 1885.

The defenders stated in answer that there was no necessity for M'Ghie projecting his head further beyond the engine than he could do with safety, and in doing so he had acted recklessly. The bridge was safe, and M'Ghie was perfectly familiar with it, and the requirements of the Board of Trade founded on did have force when the bridge was constructed under statutory authority.

The defenders pleaded—“(1) The statements of the pursuer are irrelevant and insufficient in law to support the prayer of the petition. (2) There having been no fault on the part of the defenders, they should be assoilzied. (3) The deceased having by his own carelessness and want of caution induced, or at least materially contributed to the cause of the accident, the defenders are entitled to absolvitor.”

The Sheriff-Substitute ( Hamilton) allowed a proof.

The pursuer appealed for jury trial.

The defenders argued that there was no relevant case whereon an issue could be allowed.

At advising—