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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Killop v. North British Railway Co. [1896] ScotLR 33_586 (29 May 1896) URL: http://www.bailii.org/scot/cases/ScotCS/1896/33SLR0586.html Cite as: [1896] SLR 33_586, [1896] ScotLR 33_586 |
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Page: 586↓
Sheriff Court of Linlithgow.
The employment of a competent staff of workmen and managers to whom the necessary authority is delegated, does not, ipso facto, relieve a railway company from all common law liability to its servants for injuries received by reason of defects in its system of working or in its plant.
In an action at common law for damages by the representatives of a
Page: 587↓
railway servant against the company, the pursuers averred that the accident by which the deceased had met his death had been caused by the dangerous position of a water-tank which interrupted the view of engine-drivers when approaching the spot where the accident happened, and maintained that this was a fault of the company for which they were liable. The defenders pleaded that having appointed competent workmen to erect the tank, and supplied them with proper materials, they were free from responsibility. Held that the pursuers were entitled to an issue.
This was an action at the instance of Henry M'Killop, surfaceman, Linlithgow, against the North British Railway Company, concluding for damages for the death of his son, who was run over and killed while in the service of the company. The action was laid at common law and under the Employers Liability Act, the pursuer claiming £500 and £109 alternatively.
The pursuer averred that on 19th September 1895 the deceased, while engaged in the service of the defenders as flag-boy, was so severely injured by being run over by a train at a level-crossing near the east end of Bo'ness Dock that he died the same day. “(Cond. 2) On the date of the accident, and at or about the time said accident occurred, a train of 29 waggons, or thereby, of iron ore was being pushed from the east side of said level-crossing on the Bridgeness line to be sent into the line of rails immediately behind and on the north side of a wooden paling which separates the railway, at the point of the accident, from the public highway, and which line of rails branches of from the main line about 56 feet or thereby to the east of the said level-crossing, and runs past the same to the west thereof. Where said line of rails so branches off there are points worked by means of a hand-lever. About 55 feet or thereby from the said points, and to the east thereof, there is an erection belonging to defenders, known as the water-tank, round which the said Bridgeness line, on which the said train of waggons was being pushed, forms a curve. The said watertank is a great source of danger to those whose duty necessitates their being upon the said line of rails at or about this point. (Cond. 3) At the time of the accident there was standing on the second line of rails from said wooden paling, and about 11 yards or thereby from the spot of the accident, and to the west thereof, an engine (with a train of empty waggons behind, and with the tender of the engine in front) which was in course of proceeding eastward and to cross the before-mentioned points and thereafter travel on the line on which the said loaded train was coming. The said William John M'Killop was standing so that this empty train could not proceed until his train loaded with the iron ore was clear of the said points.” The pursuer further averred that it was the duty of the flag-boy to stand there and watch the level-crossing to prevent anyone crossing while a train was being run, such as the loaded train above described; that while he was doing this the loaded train was pushed by the engine at the rear of it suddenly and without notice over him. “(Cond. 8) Owing to the erection of said water-tank it was utterly impossible for the engineman or fireman in charge of said loaded train to see if the line was clear, or to receive signals from anyone in front of their train, or to discover that their train was proceeding on a wrong line of rails. Looking to the dangerous character of this part of the line the defenders were at fault in having such an erection which is so much calculated to increase the dangers of this dangerous place. The defenders were aware, previous to the accident to the pursuer's son, that said water-tank was a source of danger, and it is believed and averred that previous to the accident, as also subsequent thereto, they were requested by the Board of Trade to have it removed from its present position, or recommended to do so. Such request or recommendation they have so far failed to comply with. Had the defenders or those for whom they are responsible exercised reasonable care the said accident could not have happened.”
The defenders pleaded—“(4) The faults alleged by the pursuer being those of his deceased son's fellow-servants the action is incompetent at common law.”
The Sheriff-Substitute ( Melville) on 31st January 1896 allowed a proof.
The pursuer appealed to the Court of Session for a jury trial, and proposed an issue in common form.
Argued for respondent—The action as raised at common law was irrelevant. There was no averment to the effect that the company had employed an incompetent person to erect the tank, and accordingly it must be assumed that it was done by efficient and competent workmen to whom the company had delegated the duty. Nor were there averments that they had not been supplied with proper materials for the work. That being so, the company were not responsible for the fault of these workmen, and could only be liable if they were personally connected with a fault in their system causing the accident, in accordance with the general rules laid down in Wilson v. Merry & Cuninghame, May 31st, 1867, 5 Macph. 809, May 29th, 1868, 6 Macph. H. of L. p. 84 at 89; Sneddon v. Mossend Iron Company, June 23rd, 1876, 3 R. 868. Sec. 1 of the Employers Liability Act 1880 (43 and 44 Vict. cap. 42), provided the remedy for defective machinery, &c., and this showed that there was no common law liability on the part of the master with regard to that. A master was only bound to have properly qualified employees. The cases cited by the appellant did not show that this point had been decided, but merely that the objection might have been taken, and was not.
Argued for appellant—The case of a railway company was not different from that of any other employer. They were responsible for any defect or danger in their permanent system, and the fact that the duty of preparing and superintending that
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system was delegated to an engineer, however efficient, did not free them from this responsibility. If the fault alleged had been a temporary and transitory one, due to some momentary breach of duty on the part of one of the company's servants, the case might have been different, but the pursuer's averments amounted to an attack upon their permanent system, and to a breach of duty by them. In such a case the responsibility of the company to one of their servants, was the same as towards a member of the public— Bartonhill Coal Company v. Reid & M'Guire, June 1858, 3 Macq. 266, at 307, 310–11, and there was nothing said to displace the view that a master was responsible, although it was impossible to bring home to him an actual obligation to do the work himself. The opinions in Merry & Cuninghame were to the effect that a master was liable for the efficiency of the machinery and apparatus supplied, and that it was no defence for him to say that he had done his best to supply efficient machinery, &c. The same rule was laid down in the case of Wallace v. Culter Paper Mills Company, June 23, 1892, 19 R. 915; and Henderson v. John Watson, Limited, July 2, 1892, 19 R. 954. There were numerous cases in which a company had been held liable to their servants at common law for a defect in their system. In the case of Cairns v. Caledonian Railway Company, March 19, 1889, 16 R. 619, a railway company had been found liable, and also in MacLeod v. Caledonian Railway Company, October 31, 1885, 23 S.L.R. 68, where an issue at common law had been allowed— Gibson v. Nimmo & Company, March 15, 1895, 22 R. 491, and cases therein cited— Macdonald v. Udston Coal Company, February 8, 1896, 33 S.L.R. 351. At advising—
In Wilson v. Merry & Cuninghame, which was a case of injury to a miner due to defective construction of scaffolding in the shaft of a coal mine, Lord President Inglis states as his opinion that because the scaffolding was constructed by the defenders' servants under the direction of the manager, and there being no question of the sufficiency of the timber, the fault was the fault of fellow-servants; but his Lordship is careful to distinguish this from the case of machinery or apparatus purchased by the master and which is of faulty construction, because if injury results, this he says is the fault of the master whose business it is to provide the apparatus. It would be easy to multiply citations on this subject, but I will only add that the liability of the master to provide fit and sufficient machinery and apparatus constituted the sole ground of judgment in the case of Wallace v. Cutter Paper Mill, Limited, where this Court held an employer responsible for injury resulting from the unfenced condition of a paper machine, rejecting the defence that the workman must be held to have taken the risk because he knew that the machine was not properly fenced.
Again, I must dissent entirely from the notion that railway companies enjoy any special immunity from claims of this kind, because they delegate the greater part of the work of an employer of labour to managers and engineers. We should not hold that a private company or partnership was able to displace the responsibility for providing sufficient machinery and plant by delegating the duty of selection to a manager. In this question I conceive that the directors of a railway company are in the same position as managing partners, and that they cannot relieve themselves of the responsibility which rests on the employer or his institor by leaving everything to the judgment of a salaried officer. The provisions of the Employers Liability Act relating to this kind of liability are no doubt to be considered in all such cases; but I do not read these provisions as if they were intended to come in place of the rule of liability of the common law, but rather as supplementary to it. They may be very useful in ambiguous cases, but only, as I think, by way of obviating a defence which might be otherwise available under the principle of common employment.
In the present case one of the grounds of action is that near a railway station where there are sidings and a level-crossing and a dockyard, and where the sources of personal danger are such that it is necessary that the trains of waggons should be preceeded
Page: 589↓
We are not at present concerned with the truth of these allegations; it may be that having regard to the requirements of the service at the station in question, no better position for the water-tank could be found. If this be so, a jury may justifiably come to the conclusion that the water-tank constituted an unavoidable danger; and that, as in other cases of hazardous employment, the risk was accepted by the company's servants. But if the allegations be true, I see no distinction in principle between the case alleged and the case of unfenced machinery. The water-tank is part of the permanent equipment of the station, and in the laying out of a station, just as in the construction and placing of stationary machinery, due regard must be had to the safety of those who are to be employed there on the business of the company, so that their lives may not be exposed to unnecessary and avoidable hazard. This, I think, is a duty incumbent on the employer whether he be an individual or a company acting through directors, and while the employer would of course be morally right in relying to a large extent on the judgment of engineers or practical men, he is not in my opinion relieved of his responsibility by the mere fact that he had appointed competent engineers and managers to whose judgment he trusts. I therefore think that the issue should be allowed.
The
Lord President,
The Court approved of the proposed issue.
Counsel for the Appellant— Ure— Dewar. Agents— Simpson & Marwick, W.S.
Counsel for Respondents— Asher, Q.C.— Grierson. Agent— James Watson, S.S.C.
