the other. It was the duty of the defenders to have had a complete covering over this pit, and had it been covered the accident could not have happened. It is usual in other works to have a complete covering over such pits when not in use." The Court held that the record disclosed that the pursuer's injuries arose from his stumble on the narrow passage, and that neither the condition of the passage nor of the adjoining moulding-pit had anything to do with such injuries, and at all events did not cause them, and dismissed the action as irrelevant, Greer v. Turnbull & Company, p. 38. Reparation Wrongous Use of Diligence-Sequestration in Security of Rent-Warrant to Carry Back Furniture Removed by Tenant. A party who had taken a house for six months at a rent of £5, removed part of his furniture before the termination of his tenancy to a farm five miles distant, of which he had taken a lease. The landlord had been informed that the tenant intended to remove before the term, though not of the precise date of his removal, and the removal was carried out in an open manner. A few days after the tenant had removed, the landlord raised a summons of sequestration against him, setting forth that he had removed his effects "without finding security for the rent, and without intimation to the pursuer." The landlord also lodged a minute craving warrant in respect the tenant "had removed the subjects of hypothec," to carry the same back to his house. No notice of these proceedings was given to the tenant, a letter from the landlord having failed to reach him owing to the person to whom it was entrusted having forgotten to post it. The Sheriff granted warrant as craved, and a sheriff-officer proceeded to the tenant's new abode and was in the act of bringing the furniture back to the landlord's house when the proceedings were stopped by the tenant paying the rent and expenses. In an action at the instance of the tenant, the Court held that the warrant had been executed without cause, and therefore that its execution was illegal, and that the landlord was liable in damages. Gray v. Weir, p. 58. Landlord and Tenant-Wrongous Sequestration-Lease-Verbal Agreement-Relevancy. A landlord sequestrated his tenant's crop for rent due under his lease. The tenant sued for damages on the ground that the sequestration was in breach of an agreement by the landlord to allow an abatement of rent, but he produced no evidence of the alleged agreeHeld that the lease could not be controlled by the alleged verbal agreement. Turnbull v. Oliver, p. 138. ment. Landlord and Tenant Slander Innuendo - "Dishonourable Conduct." A landlord wrote to a tenant complaining that he had not implemented the award of an arbiter, and used those words—“I . . . am surprised at your conduct, which you must see is very dishonourable." In an action of damages for slander by the tenant, held that d the landlord's letter only addressed a remonstrance to the pursuer and appealed to his sense of honour, and that the words complained of were not actionable-Law v. Gibsone, 13 Sh. 396, followed. Turnbull v. Oliver, p. 138. Reparation Personal Injury-Seaman Injured by Defective Rope Relevancy. A seaman employed on board a trawler sued the owner for damages for personal injury, and alleged that he had been ordered to take off the slack of a rope at the steam winch while the trawl was being hauled. Part of the covering of the splicing of the rope had become frayed, and on a previous occasion on which he had been similarly engaged the ragged end had been caught by the winch, causing a check which proved dangerous to the other seamen who were hauling the trawl. On the present occasion he saw the frayed end again approaching the winch, and seized it in order to prevent an accident, with the result that his hand was crushed by the winch. He did not allege that the rope had been supplied in a defective state. Held that it was the duty of the master of the trawler to have repaired the defective rope, and that the owner was not responsible for his failure to do so. Gordon v. Pyper, p. 178. Libel-Hotel Conducted without Certificate -"Shebeen "-Trust-Breach of Trust-Innuendo-Veritas. The proprietrix of a hotel obtained a certificate and Excise licence therefor from Whitsunday 1889 to Whitsunday 1890. She died in October 1889, and her trustees carried on the business without obtaining a transfer of the certificate until March 1890. On 6th December 1889 a letter appeared in a local newspaper which suggested that the police superintendent "might inquire into the truth or untruth of the report at present current that an old publichouse in the Guestrow is being personally conducted as a shebeen-in point of strict law-waiting the convenience of an ex-bailie and a town councillor who are both about to become joint-proprietors of the place when a licence has been secured." The trustees in possession of the hotel, who were the parties referred to in the letter, sued the writer thereof for damages. Held that the letter was not libellous, as (1) in strict law the public-house was a shebeen, and (2) the letter would not bear an innuendo of breach of trust. Cook v. Gray-Mearns v. Gray, p. 247. Master and Servant-Insufficient Precaution for Safety of Workman-Defective Gangway-Relevancy. K. & Co., the contractors for a steamship, sub-contracted for the hull with S. & Co., who employed A. & D. M. to A. & D. M. fitted up dry-dock the vessel, for S. & Co.'s use a gangway, from which a workman of K. & Co. fell, and was injured. He sued A. & D. M. for damages, alleging that the gangway was defective and dangerous, but he did not allege that it was other or less sufficient than the defenders had contracted to supply, or that they were bound to main Reparation-Master and Servant-DamagesJoint Contributor--Discharge of Liability--Personal Bar. K.& Co., contractors, sub-contracted with S. & Co., who again employed A. & D. M. The latter fitted up for S. & Co.'s use a gangway, from which a workman of K. & Co. fell and was injured. An action for damages at his instance against these three firms having been dismissed for want of jurisdiction, the pursuer took a sum of money from S. & Co., which his agent acknowledged "as in full of expenses incurred by my client and myself, as his agent, in connection with his alleged claim for damages, and in consideration of the said payment the said S. & Co., but they only, are discharged of all said alleged claims." In consideration of a sum paid by K. & Co. the pursuer discharged them "of and from all claims of reparation and for payment of legal and other expenses now or hereafter competent to me" in respect of the accident, and bound himself to relieve K. & Co. " from all claims of relief competent to any other person liable in reparation for said accident." Held, by the Lord Ordinary (Low), that these sums had not been received as compensation for the alleged injuries, and that the pursuer was not thereby barred from suing A. & D. M. for damages therefor. Campbell v. A. & D. Morrison, p. 251. Fault-Road-Obstruction-Mud-Heaps left on Road. Roadsmen in the ordinary discharge of their duty accumulated the mud raked off the Crow Road, in the neighbourhood of Glasgow, in heaps of from 8 to 12 inches in height, in close proximity to the footpath in front of certain cottages, and left it there for a few days to solidify before carting it away. The road was not lighted at night, and a woman who lived in one of the cottages, while endeavouring to cross the road after dark, tripped over one of these heaps and broke her arm. There were no cottages and no footpath on the other side of the road. Held (without laying down any general rules as to road-cleaning) that there was fault on the part of the roadsmen in leaving such heaps in such a place, and that the road trustees were liable in damages to the injured woman. Nelson v. The Lanarkshire Road Trustees, p. 261. Slander-Charge of Dishonesty against a Body of Workmen--Malice Privilege--Relevancy. A firm of shipowners sent an account and a letter to certain shipwrights demanding payment for six bottles of whisky abstracted by their men while working in the hold of a ship belonging to the firm. Thereafter each of the workmen who had been in the hold-four in number-brought an action of damages for slander against the shipowners, on the ground that he had been represented by them as dishonest and as having stolen six bottles of whisky. There was no averment of malice on the part of the defenders in having written as they had done. Held (Lord Rutherfurd Clark dub.) that no charge of dishonesty had been made against any particular individual, that the defenders were entitled by way of privilege to acquaint the shipwrights with the fact of the whisky having been stolen by their workmen, that no averment of malice had been put upon record, and that accordingly the action fell to be dismissed as irrelevant. M'Fadyen r. James Spencer & Company, p. 295 Reparation-Slander-Ship-Log-Book EntryMerchant Shipping Act 1854 (17 and 18 Vict. cap. 104) Issue - Malice - Probable Cause. In an action of damages for slander by the chief officer of a merchant vessel against the master, the pursuer averred that the defender had on one occasion expressed his wish that a certain seaman should not be permitted to steer when his turn for wheel-duty came round. About six hours later it again came to this seaman's turn at the wheel when the pursuer was in charge of the ship; the pursuer for the time entirely forgot the verbal order he had received, and permitted the seaman to take the wheel. The defender came on deck, ordered the pursuer off duty on the ground of wilful disobedience, and made an entry in the log to the effect that the pursuer had wilfully and intentionally disobeyed his orders. The Merchant Shipping Act requires the master of a vessel to enter on the log any instance of wilful disobedience, and to report the same to the authorities by delivery of the log within forty-eight hours of arrival at the final port of destination. Held (1) that an issue in such a case must include malice and want of probable cause; and (2) that the pursuer's averments showed that the defender had probable cause for his statement; and the action dismissed as irrelevant. Hill v. Thomson, p. 317. Slander-Innuendo. A letter published in a newspaper, after calling attention to the fact that the reports of schools under a certain school board had not been published, and hinting that the reports were in some cases so bad that the board were ashamed to publish them, continued---"I wonder if it is the case, as it is rumoured that the Ballachulish School is at the bottom of the poll this year again; if so, how long is this state of matters to be allowed to go on? Are the interests of the public to be sacrificed for the sake of providing a house and salary for a teacher?" In an action by the teacher of the Ballachulish School-held that the language was capable of bearing the innuendo that the pursuer was unfit for his post as teacher of a public school, and that it was the duty of the school board to dismiss him. M'Kerchar v. Cameron, p. 320. Slander-Anonymous Letter-Privilege. The teacher of a public school brought an action against the publisher of a newspaper on account of alleged slanderous statements contained in a letter signed "Another Ratepayer," which had been published in the defender's newspaper. Held (following Brims v. Reid & Company, May 28, 1885, 12 R. 1016) that the defender having refused to disclose the name of the writer of the letter, could not plead that it was privileged. M'Kerchar v. Cameron, p. 320. Reparation--Burgh--Police Commissioners--Street -Negligence-Man Injured by Stumbling over Mud-heap-General Police Act 1862 (25 and 26 Viet.c. 101). The General Police (Scotland) Act 1862 provides that the commissioners shall cleanse the street and remove sweepings "atsuch convenient hours and times as they shall consider proper." The commissioners of police of a burgh employed a servant to clear the streets of mud and collect it in heaps for removal by a contractor. The mud on a certain street had been brushed to the side, and on the following morning the commissioners' servant attempted to collect it in heaps, but owing to its watery state he could only gather it together in liquid accumulations. He had to stop work owing to a dense fog. The day was frosty and the mud became partially frozen. The contractor's men were on their way to remove the mud, but had to return on account of the fog, which continued all day. In the afternoon, a carter, while leading his horse and cart along the side of road to avoid the traffic, tripped over the mud and fell and was injured. In an action for damages at his instance, held that the commissioners were not liable, as the mud had been collected according to a reasonable custom, and as the accumulations were of ordinary size, and had not been removed because of the fog; and that the contractor was not liable, as his duty was to remove the mud when prepared for removal; that owing to the fog the mud was not so prepared, and that his duty had not begun at the time of the accident. Barton v. Kinning Park Commissioners and Others, p. 329. Personal Injury Responsibility of Auctioneer for Plant in his Employer's Premises -Fault-Relevancy. A firm of auctioneers who had been engaged to sell some bankrupt stock employed a workman to raise the goods to the upper storey of the bankrupts' premises, where the sale was to take place, by a hoist which was on the premises. When the workman was lowering some of the goods after the sale, the hoist came down with a run and injured him severely. He brought an action against the auctioneers and the purchaser of the goods which were being lowered when the accident occured, averring (1) that the accident would not have happened but for the faulty construction of the hoist, which was not furnished with a brake, and that his employers, the auctioneers, were responsible for its insufficiency; and (2) that the accident would not have happened unless the hoist had been overloaded ; and this had been done under the superintendence of the purchaser ; and that though he knew the load was too heavy for the appliance used by the pursuer as a brake, he had given him the order to lower it. Held that the pursuer had not stated a relevant case against either of the defenders. Nelson v. Scott Croall & Sons, and Others, p. 354. Reparation-Mine-Manholes on Road of MineCoal Mines Regulation Act 1887 (50 and 51 Vict. c 58). The Coal Mines Regulation Act 1887 (50 and 51 Vict. cap. 58), General Rules, No. 15, provides "Every road on which persons travel underground, where the load is drawn by a horse or other animal, shall be provided at intervals of not more than fifty yards with sufficient manholes or with places of refuge, and every such place of refuge shall be of sufficient length and at least three feet in width between the waggons running on the road and the side of such road." A miner sued his employers for damages for personal injury caused as he averred by the fault of the defenders in not having manholes along the sides of a working road of the mine. It was proved that although there were no manholes at the place in question, the road was crossed by other two roads which were within 50 yards of each other and were wider than manholes were required to be. The pursuer while walking on this road saw a horse attached to some hutches coming towards him. He ran forward to endeavour to gain the cross-road opening which was between him and the horse. He saw however that he could not do so in time, and turned back and ran to reach the crossroad opening he had passed. The horse bolted, overtook him, and knocked him down, with the result that he was severely injured. Held that as the pursuer had not proved that the accident resulted from the want of manholes, he was not entitled to recover damages from the defenders as being in breach of the Coal Mines Regulation Act 1887. QuestionWhether a cross-road can be considered a manhole within the meaning of the Coal Mines Regulation Act? Hughes v. The Clyde Coal Company, Limited, p. 387. Slander — Malice — Privilege—Statement regarding Candidate for Town Council by One Elector to Another. A candidate for election to the Town Council of Glasgow brought an action of damages for slander against an elector, who, as he averred, had stated to other electors prior to the election "that he had been bankrupt as a grocer, that he had made a very bad failure-meaning thereby that it was a dishonest and disreputable failure, and that his creditors had received only eighteenpence in the pound, and that he was in consequence an unsuitable person to represent the electors in the Council of Glasgow." Held (1) that it was a jury question whether the words used bore the innuendo sought to be put upon them, but (2) that the record disclosed a case of privilege, and, as malice had not been averred, the action fell to be dismissed. Bruce v. Leisk, p. 412. A Reparation-Wrongous Legal Proceedings-Want of Citation and Notice-Small Debt DecreeProceedings before Decree-Diligence following Decree-Review-Small Debt Act 1837 (1 Vict. c. 41), secs. 30, 31-Citation Amendment (Scotland) Act 1871, sec. 3- Citation Amendment (Scotland) Act 1882, sec. 3-Relevancy. summons of sequestration for rent was taken out against a tenant in the Small Debt Court, upon which an appraisement of his effects was made, and thereafter decree was pronounced with warrant of sale under which his effects were sold. He brought an action of damages for wrongous legal proceedings against his landlord and against the sheriffofficer, in which he averred that he had received no citation under the summons, no notice of the appraisement, and no notice of the sale. He admitted that he had recently changed his address, leaving his furniture behind him, but averred that that change was well known to the defenders. The defenders explained that the summons, with a copy of the appraisement and the decree with warrant of sale, had both been duly served upon the pursuer at his last known place of residence. Held (1) (aff. Lord Low, and following the case of Crombie v. M'Ewan, January 17, 1861, 23 D. 333) that any irregularities in the proceedings prior to the decree were protected by the decree, which was not open to review by the Court of Session, but (2) (rev. Lord Low) that the pursuer's averment of no notice of the diligence following upon the decree was relevant and entitled him to an issue, any explanations by the defenders falling to be dealt with at the trial. Gray v. Smart and M'Donald, p. 589. Landlord and Tenant-Relevancy— Insecure State of House-Duty of Tenant who Discovers Defect in House. The tenant of a house had occupied it from Whitsunday 1890 till 9th March 1891. On the latter date she fell down the steps leading from the level of the street up to the outside door of the house, and sustained serious injuries. She brought an action against the landlord for £1000 as damages for the injuries received by her, and averred that when she entered into possession of the house she found the steps were much worn and in a dangerous condition for her use as a tenant. Held that there was no relevant case against the landlord, there being only two courses open to a tenant who discovers a defect in his house, either (1) to remain in the house and take the risk of accident, or (2) to give the landlord notice to remedy the defect, and if the landlord does not do so within a reasonable time, to leave the house. Webster v. Brown, p. 631. Slander - Privilege - Statement by Physician Called in to See Patient. A midwife brought against a physician an action of damages for slander in which she averred that the defender was called in to see a patient whom the pursuer had attended, and that on hearing that the pursuer had given the patient a drug to soothe her pains, the defender, conceiving that it would be a favourable opportunity for indulging his hostile and malicious feeling towards the pursuer, falsely, wickedly, calumniously, and maliciously stated to the patient's husband that the pursuer had poisoned his wife. An issue not containing malice and want of probable cause proposed by the pursuer for the trial of the cause approved, the Court holding that although prima facie a case of privilege was stated on record, yet it was not absolutely clear at that stage that the case was one of privilege, and that if the evidence at the trial raised such a case, it was the duty of the judge to direct the jury that malice on the part of the defender must be proved before they could find for the pursuer. Reid r. Coyle, p. 638. Reparation-Master and Servant-Scaffold-Precautions for Safety of Workmen - Employers Liability Act 1880 (43 and 44 Vict. cap. 42). A mason along with a foreman erected a scaffold for a particular purpose such as they and other masons were accustomed to put up. The scaffold proved to be insufficient, and the mason fell with it and was killed. In an action by his representatives against his employer, held that the defender was not liable in damages. Thomsons v. Dick, p. 729. Dangerous Part of a Road-Fencing. Held that part of a road supported upon a retaining-wall, and with a drop of 8 or 9 feet to the seashore, was not necessarily dangerous so as to require fencing, and that the question of whether it was dangerous or not was peculiarly one for a jury to determine upon evidence. Fraser v. Magistrates of Rothesay, p. 740. Latent Defect in Machine-Duty of Inspector-Onus-Res ipsa loquitur. In an action of damages where an accident had occurred through the lower strap of a crane snapping owing to a latent defect, it was proved that two years before the upper strap had snapped from a similar defect; that the defender, the owner of the crane, had not then discarded the lower strap, but had sent the crane to be overhauled by a competent engineer, who had examined and retained the lower strap, that since then the defender's foreman had continued to inspect the crane in the ordinary way, and that sufficient time had not elapsed to necessitate such special inspection as could alone have revealed the defect. Held that no fault had been established against the defender, who fell to be assoilzied. Observations upon the onus of proof in cases of latent defect, and upon the application of the maxim res ipsa loquitur to such cases. Milne v. Townsend, p. 747. Workman Injured by Wrong Order of Foreman-Sub-Contractor-Employers Liability Act 1880 (43 and 44 Vict. cup. 42), see. 1, sub-sec. 3. A firm of shipbuilders apportioned their work among their various workmen, who again employed labourers to assist in the appointed tasks. One of their workmen, the gaffer of a gang of labourers whom he had engaged, gave a wrong order, which & Company, p. 777. Reparation-Employer and Workman-Want of Fencing-Extraordinary Danger-Risk Voluntarily Incurred "Volenti non fit injuria." Held (following the case of Smith v. Baker & Sons, July 21, 1891, H.L. Appeal Cases, 325) that it is a question of fact in each case whether a workman who continues working in knowledge of danger, not necessarily incidental to his employment, has or has not taken the risk upon himself, so as to relieve his employer of responsibility in the event of his meeting with an accident; and that a workman who had repeatedly complained of want of fencing had not taken such risk upon himself and was not barred from claiming reparation for injury because he had not left his employment. Distinction drawn between a workman being "sciens" and being "volens," namely, between "encountering danger" and "accepting risk" in the sense of liability for the consequences of injury. Wallace v. Culter Mills Paper Company, Limited, p. 784. Ship in Course of Construction-Tank Unfenced and Unlighted-Extraordinary Risk -Relevancy. In an action of damages brought by a widow for the loss of her husband, who had been killed while in the defenders' employment through falling into a tank upon a vessel in course of construction, it was averred that the tank was situated close to the foot of the ladder by which the deceased was about to leave his work, and in or near the only path of exit; that it was not fenced or protected in any way; that the deceased was not aware that it was open and unfenced; that it was quite dark at the time; that it was the defenders' duty to have fenced or covered said tank or lighted it up; that the deceased had relied, and was entitled to rely, upon their doing so; and that at other times they had both covered or fenced the tank and lighted it up with a large stationary naphtha lamp. Held (diss. Lord M'Laren) that the averments disclosed a case of extraordinary risk, and that the pursuer was entitled to an issue for trial by a jury. Case of Forsyth v. Ramage & Ferguson, October 25, 1890, 18 R. 21, distinguished. Jamieson v. Russell & Company, P. 790. Master and Servant—Company as Defenders-Relevancy at Common Law and under Employers Liability Act 1880 (42 and 43 Vict. cap. 42). In an action for damages (£500 at common law, or otherwise £210, 12s. under the Employers Liability Act 1880) raised by a miner against a mining company, the pursuer stated that when in the employ ment of the defenders he had been injured by a runaway bogie which came dashing down an inclined plane. The pursuer averred that the injury had been caused by the bogieman "skiting the rope" i.e., allowing the haulage rope to run in the groove of the shears attached to the bogie, instead of making the shears grip the rope tightly, and he further averred that this practice was known to and authorised by the defenders and their manager and oversman. A general issue in the usual terms with a schedule claiming £500 damages approved, and a motion of the defender to dismiss the action so far as laid at common law and reduce the damages in the schedule to £210, 12s., refused. Remarks by Lord M'Laren on the effect of the Employers Liability Act. Opinion by Lord Kinnear that the action was relevant at common law. Henderson v. John Watson, Limited, p. 815. Reparation--Injury--Fencing--Factory and Workshop Act 1878 (41 Vict. cap. 16). The Factory and Workshop Act 1878 provides-"5. With respect to the fencing of machinery in a factory the following provisions shall have effect (3) Every part of the mill gearing shall either be securely fenced or be in such position or of such construction as to be equally safe to every person employed in the factory as it would be if securely fenced." The mash-tun in a distillery had a piece of machinery connected with a horizontal shaft from the centre of the mash-tun, and worked by steam power, which travelled round the edge of the mash-tun on a pinion wheel and set certain revolving rakes in motion in the interior of the mash-tun to stir up and mix the mash. Running round the outside mouth of the mash-tun a strong iron guard-rod had been placed which did not run the whole length of the mash-tun. The mash came into the mash-tun through a spout which was fixed in the wall of an adjoining compartment. The duty of a workman was to clean out the spout. To do this he had to stand upon a box or stool at the side of the mashtun. He had frequently performed this operation before. There was no protecting rod at the place he stood to clear the spout. While so engaged, the stool on which he stood slipped and the revolving machinery caught and fatally injured him. His widow brought an action against his employers on the ground that the mash-tun had not been properly fenced in terms of the provisions of the Factory and Workshop Act 1878. Held (1) that it was not compulsory under the Act for the employers to fence this piece of machinery, (2) that on the pursuers' averments it was plain that the accident occurred from the accidental slipping of the stool, for which the defenders were not liable, and the action dismissed as irrelevant. Robb and Others v. Bulloch, Lade, & Company, p. 832. Culpa Poisonous Goods - Railway. Duty of Railway Company as Common Carriers -Duties of Consignor and Consignee. A box |