Wilson v Merry and Cunningham
| Jurisdiction | Scotland |
| Judgment Date | 31 May 1867 |
| Date | 31 May 1867 |
| Docket Number | No. 135 |
| Court | Court of Session (Inner House - First Division) |
C.
Master and Servant—Reparation—Culpa—Collaborateur—Manager.—Held
THIS was an action of damages at the instance of Mrs Euphemia Wilson against Merry and Cunningham, coal and iron masters, Glasgow, in which the following issue was sent to trial:—‘It being admitted that the defenders are proprietors of the Haughead pit, near Hamilton, in the county of Lanark,—Whether, on or about the 25th day of November 1863, the deceased Henry Wilson, miner, Haughead, the son of the pursuer, while engaged, in the employment of the defenders, as a miner in said pit, was killed by an explosion of fire-damp, through the fault of the defenders, to the loss, injury, and damage of the pursuer? Damages laid at L.400.’
The case was tried in July 1866, when the jury returned a verdict for the pursuer. Damages L.100. This verdict was set aside as contrary to evidence, and a second trial took place in January last.
The facts of the case, as brought out by the evidence, were as follows:—
Henry Wilson, the deceased, was engaged as a miner in the Haughead pit, near Hamilton, by John Neish, the defenders' manager of the pit. On the 25th November 1863 the deceased was employed on a scaffold which had been erected across the shaft of the pit for the purpose of working into a seam of coal, some fathoms from the bottom of the pit. The scaffold, which was a temporary erection, was blown up by an explosion of fire-damp, and the deceased was precipitated to the bottom of the shaft, and killed. The pursuer alleged that the accident occurred in consequence of the defective construction of the scaffold, which had no proper apertures for ventilation left in it; that fire-damp accumulated below it, and came in contact with deceased's lamp; and that the defenders were therefore responsible.
At the second trial the presiding Judge (Lord Ormidale), inter alia, directed the jury that ‘if they were satisfied on the evidence that the arrangement or system of ventilation in the Haughead pit at the time of the accident in question had been designed and completed by Neish before the deceased Henry Wilson was engaged to work in the pit, and that the defenders had delegated to Neish their whole power, authority, and duty in regard to that matter, and also in regard generally, to all the underground operations, without control or interference on their part, the deceased Henry Wilson and Neish did not stand in the relation of fellow-workmen, engaged in the same common employment, and the defenders were not, on that ground, relieved from liability to the pursuer for the consequences of fault, if any there was, on the part of Neish, in designing and completing said arrangement or system of ventilation.
‘Shand, for the defenders, excepted to the foregoing direction, and asked the following direction, viz.—That if the jury be satisfied on the evidence that the defenders used reasonable care in the appointment of John Neish as manager of the pit in question, and put at his command all necessary means for the proper working and ventilation of the pit, the defenders are not in law answerable for the personal fault or negligence of Neish in the arrangements made by him for ventilating the shaft, at and below the scaffold used at the Pyotshaw seam, on the occasion in question.
‘The said Lord Ormidale refused to give the said direction; whereupon the counsel for the said defenders excepted to the said refusal.’
The jury returned a verdict for the pursuer. Damages L.100.
The case now came before the Court on the bill of exceptions.
The position occupied by Neish is stated in the evidence of Jack.∗
The defenders argued;—The correct principle was laid down in Priestly v. Fowler.1 A master is bound to provide for the safety of his servant to the best of ‘his judgment, information, and belief.’ He is responsible...
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Donnelly v Glasgow Corporation.; Henderson v Glasgow Corporation.; Ross v Glasgow Corporation
...1932 S. C. (H. L.) 31, [1932] A. C. 562. 14 Glegg on Reparation, (3rd ed.) pp. 375 and 380. 15 Wilson v. Merry and CunninghamUNK, (1867) 5 Macph. 807, Lord President Inglis at p. 811; Macdonald v. Wyllie & Son, (1898) l. F. 339; English v. Wilsons and Clyde Coal Co.SCELR, 1937 S. C. (H. L.)......
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Macdonald v Wyllie & Son
...trial, reserving the question of expenses.’ 1 Baird v. AddieUNK, Feb. 8, 1854, 16 D. 490; Wilson v. Merry & CuninghameUNK, May 31, 1867, 5 Macph. 807, per Lord President Inglis at p. 811, 39 Scot. Jur. 426; Weems v. MathiesonUNK, May 31, 1861, 4 Macq. 215; M'Killop v. North British Railway ......
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Woodhead v Gartness Mineral Company
...Court in Wright v. Roxburgh and Morris (2 Macph. 748), and of the First Division and the House of Lords in Wilson v. Merry and Cunningham (5 Macph. 807, and 6 Macph., H. L., 84). In the last-named case the present Lord Chancellor said—‘I do not think the liability or non-liability of the ma......
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...the whole roof had been properly and efficiently geared at and prior to the accident.’… 1 Wilson v. Merry and Cunningham, May 31, 1867, 5 Macph. 807, 39 Scot. Jur. 426—in the House of Lords, May 29, 1868, 6 Macph. (H. L.), 84, 40 Scot. Jur. 486; O'Byrne v. Burn, July 8, 1854, 16 D. 1025, 26......