M'Killop v North British Railway Company
| Jurisdiction | Scotland |
| Judgment Date | 29 May 1896 |
| Docket Number | No. 152. |
| Date | 29 May 1896 |
| Court | Court of Session (Inner House - First Division) |
Lord M'Laren, Lord President, Lord Adam, Lord Kinnear.
Reparation—Master and Servant—Railway—Responsibility of railway company for defective equipment of their line.—
A railway company or other employer is not relieved, by the appointment of competent engineers and managers, from responsibility for injury arising to a servant from a defect in the construction of the works.
In an action for damages at common law and under the Employers Liability Act at the instance of the father of a railway servant, the pursuer averred that his son had been run over and killed by a train while acting as a flag-boy at a level crossing; that the train in question was being pushed by an engine behind on a line which formed a curve, close to the place of the accident, round a water-tank, and that the water-tank had been erected by the defenders in such a position as to make it impossible for those in charge of the engine to see whether the line was clear, or to receive signals. The defenders pleaded that there was no relevant case at common law, in respect that there was no averment that the engineers employed to lay out the station and to fix the site of the water-tank were not competent. Held that the pursuer was entitled to an issue at common law.
Observations (per Lord M'Laren) on the Bartonskill Coal Company v. M'Guire, June 17, 1858, 3 Macq. 300; Wilson v. Merry & Cunningham, May 31, 1867, 5 Macph. 807; and Wallace v. Culter Paper Mills Company, June 23, 1892, 19 R. 915.
Henry M'Killop, railway surfaceman, brought an action of damages in the Sheriff Court at Linlithgow against the North British Railway Company on account of the death of his son, William John M'Killop, while in the service of the defenders.
The action was laid both at common law and under the Employers Liability Act.
The pursuer averred that on 19th September 1895 his son, while acting as a ‘redcap’ or flag-boy to a train approaching a level crossing at Bo'ness Dock, on the defenders' line, was run over by the train, and so severely injured that he died; that the train, consisting of twenty-nine loaded waggons, was being pushed by an engine behind from the east along the Bridgeness line; that the pursuer's son was informed that the train was to be shunted to a branch line B, the points being 56 feet east of a level crossing; that his son was sent forward to the level crossing to prevent obstruction; that a train of empty waggons was on an adjoining line C, waiting till the loaded train cleared the points so as to enable the empty train to proceed on the Bridgeness line; that his son, while standing on the C line facing this train was run over by the loaded train, which, by some defect in or mismanagement of the points, had come along the C line instead of the B line. ‘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 water-tank 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. 7) ‘Neither the first guard nor second guard in charge of said loaded train were at their posts as they should have been, and the engineman in charge of said train proceeded without a signal or warrant to do so, and without blowing the engine whistle, or giving any warning of his approach, as he should have done.’ (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, to receive signals from any one 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...
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Davie v New Merton Board Mills Ltd
...so. And if from any negligence in this respect damage arise, the master is responsible." 65Next there was cited the case of M'Killop v. North British Railway Company, 23 R. 768, when Lord M'Laren said with regard to Lord President Inglis's observation in Wilson v. Merry & Cunningham: "but h......