DUDGEON v. THOMSON. (1 Macq. 714-728.) Jurisdiction. Where the Court below have acted as arbitrators, there can be no review by the House of Lords. Where the parties agree to a particular decision, there can be no appeal from it. [See Burgess v. Morton [1896] A. C. 136, 65 L. J. Q. B. 321, 73 L. T. 713, where this case is cited by Lord WATSON. It is thought needless to reprint it here, as the points decided are completely covered by the later authority. -F. P.] PATERSON v. WALLACE & CO. (1). (1 Macq. 748-759.) Death by accident-Master and servant. A master is bound to take all reasonable precautions to secure the safety of his workmen; more especially if the work be of a dangerous character and the persons engaged proverbially reckless. By the law of England, when the accidental death of a servant is occasioned by the negligence of a fellow-servant, the master is not generally held responsible. This does not appear to be the law of Scotland. Sed quære. How far the rashness of the deceased is an answer to a claim of reparation on the part of his relatives where negligence is established against the master. Whether the English and Scotch laws do not differ on this head-Quære. When the person killed is a stranger. If the deceased has himself contributed to the accident his relatives cannot in England recover. Whether if negligence be established against the defendants mere rashness on the part of the deceased would in Scotland be an answer to the action-Quære. In England the injury sustained by the accidental death of a relative must, in order to be compensated by the verdict of a jury, be of a pecuniary character. An English jury cannot give damages for affliction. In Scotland the jury administer a solatium to injured feelings. On the 1st December, 1851, William Paterson was accidentally killed while working in a coal pit as servant of the defenders; and the question was whether they were bound to make reparation to his widow and children? The COURT below directed the following issue for trial: "Whether, on or about the 1st day of December, 1851, Robert Paterson, while engaged in the service of the defenders, as a miner, in the said pit, sustained injuries to his person, which shortly afterwards caused his death; and whether the said injuries. were occasioned by reason of the unsafe and insufficient condition of the main road of the said pit, and of the roof of the said main road, and by the fault, negligence, or unskilfulness of the defenders, or of any person or persons for whom they are responsible, to the loss, injury, and damage of the pursuers ?" After the evidence was concluded, Lord Justice-Clerk HOPE, who presided, told the jury that the pursuers could not recover; and they thereupon returned a verdict for the defenders. (1) Cited, Hall v. Johnson (1865) 140 R. R. 622, 625 (3 H. & C. 589, 592); Fowler v. Lock (1872) L. R. 7 C. P. 272, 280, 10 C. P. 90, 41 L. J. C. P. 104; and cp. Brydon v. 1854. July 27, 28, 31. Aug. 1. 1854. July 3, 6. Lord CRANWORTH, L.C. Lord BROUGHAM. [748 ] PATERSON V. WALLACE & Co. [ *750 ] [ 751 ] The pursuers' counsel excepted to the learned Judge's directionon the ground mainly that he had unwarrantably withdrawn from the jury a question which it was peculiarly and exclusively the province of the jury to decide. The Lords of the Second Division, however, disallowed the bill of exceptions. Hence the present appeal. Mr. Hodgson, for the appellants : If there be any evidence whatever, it ought to be left to the jury: Fraser v. Hill (1). In that case the Lord Chancellor CRANWORTH laid it down that a Judge had no right to say, upon the facts proved leading to a particular conclusion-that the conclusion was or was not established. That was matter for the jury alone to deal with. There was enough of evidence in the present case to have justified the jury in coming to a conclusion opposite to that of the learned Judge: Neilson v. Rodger (2). There is no evidence of rashness on the part of the deceased; but the rashness of a workman-where there has been negligence on the part of the masterwill not relieve the master from damages if injury arise: Sword v. Cameron (3). The Solicitor-General (Sir Richard Bethell), and Mr. Bovill, for the respondents: The deceased suffered from his own culpable rashness and therefore no claim of reparation arises: McNeill v. Wallace (4). (LORD BROUGHAM: Workmen in mines are proverbially reckless. This makes it incumbent on the masters of such men to be more than ordinarily careful.) The deceased knew the danger. He was warned against it-and rushed into it notwithstanding. The attempt to fix the masters here is extravagant. The law of England on the point is too clear for argument. The Scotch law does not differ. THE LORD CHANCELLOR (5): My Lords, in matters of civil jurisdiction, trial by jury, as was stated on a late occasion by a learned counsel (6), is still to be considered an exotic, rather than an indigenous plant, in Scotland. It appears to me that the learned Judges have come to an erroneous conclusion in overruling these exceptions. When a master employs a servant in a work of a dangerous (1) 1 Macq. 392. (2) Feb., 1854. (3) 13th Feb., 1839, 1 Dun. 493; and see Whiteland v. Moffat, 27th Dec., 1849, and Rankin v. Dixon, 31st Jan., 1852. (4) Second Series, vol. xv. p. 818. (5) Lord CRANWORTH. (6) Sir Richard Bethell, 1 Macq. 400, n. (2). ["In matters of civil jurisdiction, trial by jury is but an exotic, as yet unprosperous in Scotland."] character, he is bound to take all reasonable precautions for the safety of that workman. This is the law of England no less than the law of Scotland. It is the master's duty to be careful that his servant is not induced to work under a notion that tackle or machinery is staunch and secure when in fact the master knows, or ought to know, that it is not so. And if from any negligence in this respect damage arise, the master is responsible. It is very true that if a master employ several servants in the same operation, as in building a house or in working a mine,-the persons engaged being competent persons,-should an accident happen to one of them owing to the neglect of another, the master is not by the law of England held responsible (1). When however the accident happens, not to a servant, but to a stranger, i.e., to one of the public, the master is bound, both in England and in Scotland, to make reparation (2). My Lords, the present action was brought upon the ground that this unfortunate man had lost his life by reason of the masters, through their agents, having carelessly left a very large stone on the roof of a mine in so dangerous a position that it fell on the workman, when engaged in digging out the coal, and killed him on the spot. Now in order to recover damages the family must establish two propositions,-First of all they must show that the stone was in a dangerous position owing to the negligence of the master; and next that the workman, whose life was forfeited, lost it by reason of that negligence, and not by reason of rashness on his own part. It is said that by the law of Scotland the master is bound to provide against the rashness of his workmen; and I see, in one of the learned Judge's opinions (3), an *expression which might give countenance to such a notion. But with great deference to that learned Judge, I apprehend the proposition is one which, as matter of law, can never be sustained. In England, in Scotland, (1) Generally a servant cannot recover damages from his master for injuries sustained by him through the negligence of a fellow-servant, such fellow-servant having been a person of ordinary skill and care: Hutchinson v. York, &c. Rail. Co., 82 R. R. 697 (5 Ex. 343), relying on Priestley v. Fowler, in Exchequer, 49 R. R. 495 (3 M. & W. 1), where the COURT, finding that there was no precedent for an action by a servant against a master in such circumstances, decided, " upon general principles," that it was unsustainable. (2) In an action by a widow for the loss of her husband under Lord Campbell's Act (9 & 10 Vict. c. 93), it was held that the plaintiff was entitled to recover only for the (3) The Lord Justice-Clerk HOPE said: We have had occasion to lay down the doctrine that mere rashness on the part of the workman would not exclude a claim of reparation, if the employer had neglected his duty." PATERSON and in every civilised country, a party who rashly rushes into WALLACE danger himself and thereby sustains damage cannot say to the v. & Co. [ *755 ] master, "This is owing to your negligence." As a question of fact it may very well be laid down that that which would be reasonably treated as rashness in other persons might not be treated as rashness in a workman, if the master knew that the rashness was of a kind which workmen ordinarily exhibit; and that perhaps was all the learned Judge meant. At the trial several witnesses were called: the first was the son of the deceased, who said that one Snedden was the underground manager of the mine. It would seem that there had been some dispute about not going to work on the day in question. The manager advised the workmen not to lose a day's wages, and then, Paterson being amongst them, they all pointed to the roof as in a very dangerous condition, particularly the stone. "Snedden said they were afraid of snow when none fell." The jury would understand from that, or they might at least understand from it, that he meant to say, "You are crying out before there is any real danger." The deceased remonstrated and said, "It is dangerous." To which the manager answered, “Why, Robin, you might make your bed below it; " evidently intimating that there was no danger. Snedden ultimately agreed that the stone should be removed, and sent down. persons for the purpose. In the mean time Paterson, not waiting for the removal of the stone, got a hutch or load of coal, and passing with it underneath, was unfortunately killed by the stone *falling at that very moment, just as they were going to remove it. Now the plaintiffs were to make out first, that the stone had been negligently suffered to remain too long without being removed; and, secondly, they were to make out that Paterson lost his life, not by his own rashness, in passing under that stone before its. removal, but by reason of the negligence of the master or the negligence of Snedden, his underground manager. It was not for the Court below, nor is it for your Lordships, to say what would have been the conclusion at which the jury would have arrived, or ought to have arrived, upon the evidence. The question for the Court below and for the House is this: Was there evidence that might by possibility justly have led the jury to come to a conclusion in favour of the plaintiffs upon both the propositions to which I have adverted? That there was evidence of the stone having been dangerously or improperly left, is unfortunately but too clear from the unhappy event which occurred. The only other evidence therefore which it was necessary for the plaintiffs to lay before the jury was, that the accident arose from the deceased fairly trusting that all was safe, and that he had not rashly gone where he had been warned not to go. It is sufficient to say upon that point, that there is a conflict of testimony. Lord COCKBURN remarked that the LORD JUSTICE-CLERK, who had tried the case, had had the benefit of seeing the demeanour of the witnesses. No doubt he had. But how do we know that, from the demeanour of the witnesses, the jury might have not come to the conclusion that all the evidence was concocted and worthless; or that it did not establish rashness on the part of the deceased? If I were asked to decide upon this written evidence whether there was rashness or not, I believe I should *hold that the proof of rashness strongly preponderated. But I am not the jury, and your Lordships, now representing the Court, are not the jury. The question is what ought to have been said by the Judge to the jury after the evidence had been given? It was his duty to point out to them the evidence which bore upon the two propositions, namely, whether there had been a want of timeous removal, as they call it, upon the part of the master, and whether they were satisfied that Paterson came by his death, not by reason of his own rashness, but by reason of his having so implicitly relied upon the assurances which were given to him by Snedden. Whichever way the jury had found, probably there would have been nothing upon the face of this record to lead to the conclusion that the verdict was wrong. But if there was anything wrong, it would have been set aside by a new trial, and not by a bill of exceptions. The only remaining question is, whether we have such an exception here as fairly to bring first under the consideration of the Court below, and now of your Lordships, the question whether the learned Judge was right in withdrawing the case from the jury. I am of opinion that the exception is sufficient. The Judge at the trial says, "Gentlemen, there is no evidence upon the part of the pursuers." What can the counsel do more than say "I except to that"? His excepting means that he contends there is a case for the jury. If the exception was so pointed as to call the attention of the learned Judge to the fact that there was evidence for the jury, whereas he was telling them there was none, the function of an exception was performed. The pursuers' counsel at the trial said by his exception that the learned Judge ought to have laid down as follows: *"That if Snedden, the defenders' manager, had failed in his duty in timeously directing the stone in question to be removed, it would afford no defence that Paterson continued to work after the orders for the removal of the stone had been ultimately given." That, I apprehend, is good law. Let me assume the jury to have been satisfied that the master was guilty of negligence in not timeously removing this stone, then assuming all the rest of the evidence to be true, including amongst other things that Snedden told |