Mrs. Weir or Wilson v. Merry and Cuninghame, Ironmasters [1868] UKHL 2_Paterson_1597

UKHL
Mrs. Weir or Wilson v. Merry and Cuninghame, Ironmasters
[1868] UKHL 2_Paterson_1597 · 1863-11-21
W. was engaged to work in the coal pit of M ., and owing to defective ventilation , an explosion took place whereby IV. was killed. In an action against M. by W.'s representatives , it was proved , that one N. was underground manager, and had superintended the making of the shaft for ventilation some days before IV. was employed. M. took no part in the management, and N. was a suitable and competent manager, and furnished with proper materials by M .Held (affirming judgment), That there was no evidence to justify a verdict against M. the master for damages.The non-liability of a master to a servant, where the cause of injury is the negligence of a fellow servant, is only an example of the general rule, that a master is not liable unless he has neglected that which he has contracted to do; and in general he does not contract to execute person the work connected with his business—Per The non-liability of a master to a servant, where the cause of injury is the negligence of a fellow servant, is only an example of the general rule, that a master is not liable unless he has neglected that which he has contracted to do; and in general he does not contract to execute person the work connected with his business—Per Lord Chancellor Cairns.Semble, Under the Mines Regulation Act , 23 and 24 Vict. c. 151, a cumulative penalty is imposed on a master for not ventilating a mine, but his liability at common law is not varied—Per a cumulative penalty is imposed on a master for not ventilating a mine, but his liability at common law is not varied—Per Lord Chelmsford.This was an appeal from the First Division of the Court of Session. An action was brought by Mrs. Wilson, the widow of a miner employed in the respondents' coal mine at Haughhead, near Hamilton, to recover damages for the death of her husband, caused by the negligence of the respondents' servants. The condescendence alleged, that the respondents' manager, named Neish, had erected a scaffold in a certain part of the pit, which closed up the ventilation. This was done on 21st November 1863. On Monday following, the deceased, Henry Wilson, was

Footnote

1 See previous report 5 Macph. 807; 39 Sc. Jur. 426. S. C. L. R. 1 Sc. Ap. 326; 6 Macph. H. L. 84.: 40 Sc. Jur. 486.

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Lord Ormidale charged the jury as follows; “and,—after explaining that in law the defenders were not answerable for the consequences of an accident which could not have been foreseen, and, by reasonable care and caution, prevented, or for the consequences of an action caused by —deceased's own fault, or the fault of a fellow workman, as Bryce must be held to have been, in the present instance, engaged with him in the same common employment; and after also explaining the nature of the obligation under which employers lay of providing all apparatus and machinery necessary and proper for the safety of their workmen,—proceeded to bring under their consideration the circumstances relating to the ventilation arrangement or system of the pit in question, distinguishing betwixt the keeping clear and in good working order the ventilation arrangement or system when completed, and after the deceased came to be engaged in the pit, and defect or fault in said arrangement or system itself.” And, in reference to the latter, Lord Ormidale, in the course of his charge, directed the jury that, “If they were satisfied on the evidence, that the arrangement or system of ventilation in the Haughhead 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.” Lord Ormidale refused to give the said direction; whereupon the counsel for the defenders excepted to the said refusal.Thereafter, the jury aforesaid did then and there deliver their verdict in favour of the pursuer. Damages, £100.Thereafter, parties were heard on the rule for a new trial and the bill of exceptions, when the following interlocutors were pronounced: —
“ Edinburgh , 31 st May 1867.—The Lords having advised the bill of exceptions for the defenders, No. 38 of process, and heard counsel for the parties, allow the second of the exceptions: Set aside the verdict in this cause, and grant a new trial; reserving all questions as to expenses I until the final issue of the cause.”
“ Edinburgh , 31 st May 1867.—The Lords, in respect of the judgment this day pronounced on the bill of exceptions for the defenders, No. 38 of process, discharge the rule formerly granted.”
The appellant in her printed case stated the following reasons for reversing the interlocutor of the First Division:—1. Because the presiding Judge was right in directing the jury, that, assuming it to be proved in point of fact, that the death of Henry Wilson was caused by fault on the part of Neish in designing and completing the arrangement or system of ventilation in the Haughhead pit, the defenders are in law responsible for that fault, the designing and completing the system of ventilation, by providing proper machinery or apparatus for this purpose, being a duty imposed on the master, both by common law, and the Alines Inspection Act 23 and 24 Vict. c. 151,§ 10, and for the due performance of which he is personally responsible. 2. Because the Judge was right in directing the jury, that if they were satisfied on the evidence, that the arrangement or system of ventilation in the Haughhead 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, the deceased Henry Wilson and Neish did not stand in the relation of fellow workmen, engaged in the same common work or employment, and that the defenders

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The respondents in their printed case stated the following reasons for affirming the interlocutor: 1. The direction given by the Judge was based on assumptions with regard to matters of fact, for which there was no foundation in the evidence, and was therefore inapplicable to the case, and misleading. 2. Even on the assumptions stated in the charge, the Judge erroneously directed the jury, that the respondents were responsible for Neish's fault. 3. The respondents were not responsible in law for the fault of Neish, even although it had been the fact, that they had delegated to him all their powers, in respect he was properly selected for the office he held. 4. The fault alleged against Neish was one committed by a properly selected person in carrying out the ordinary operations of the pit, and was not a failure or neglect of duty to supply proper machinery or apparatus. 5. Though the fault had been of the latter order, the respondents were not responsible therefor, in respect that they had deputed the work, including the erection of a suitable platform, to a person reputed skilful, and that no personal fault of any kind was alleged against them. 6. The direction was erroneous in point of law, and caused a miscarriage in the trial. 7. The judgment of the Court was based on views entirely consistent with the facts and law of the case.Quain Q.C., Strakan , and Junner , for the appellant.—The interlocutor of the First Division was wrong. The owner was liable for this accident, because having invited the deceased to work in the pit, he was bound to take reasonable care to keep the pit ventilated. That was so at common law— Dixon v. Ranken , 14 D. 420; Paterson v. Wallace , 1 Macq. Ap. 748; ante , p. 389; Wright v. Roxburgh , 2 Macph. 748. But whatever may be the common law, the Statute 23 and 24 Vict. c. 151, expressly puts this obligation on the master, and he cannot get rid of the obligation by appointing a suitable manager.[ Lord Chancellor. —It does not seem to have been put to the jury, whether the accident was caused by an original defect in the system of ventilation, or merely some defective working of it.]It does not seem to have been so put distinctly, but the jury must have assumed it was a mistake in the original system of ventilation.[ Lord Chancellor. —Then you should have excepted to that part of the case, and contended that the defenders were liable by Statute. We can only take up the points embraced in the exception.]Then if that is so, the second objection will be relied upon. Here it plainly appeared, that all the underground arrangements were left exclusively to Neish. The masters therefore delegated all their authority to Neish, and if so, that took the case out of the category of fellow servants engaged in a common operation.[ Lord Chancellor. —If the negligence arose before the relation of fellow servant was constituted, does the rule as to fellow servants apply?]It is enough to say, that the duty of Neish, as representing the master, was continuous down to the date of the accident. It was his duty to see that the ventilation was efficient. It cannot, however, be said, that a servant who enters into an employment, in addition to ordinary ri sks arising from fellow servants, is also to take upon him the risks from fellow servants before he entered into the employment. Therefore, if Neish was a fellow servant, the negligence, was committed. The scaffold was a permanent structure, and stood at the time as it had been made before; and if it was originally defective, the deceased was not bound to take that risk on himself. But the true view is, that Neish was the delegate of the master, and stood in the master's shoes. He was not a fellow servant nor engaged in the same employment, as in Bartonshill Coal Company v. Reid , 3 Macq. App. C. 266; ante , p. 785; Bryden v. Stewart , 2 Macq. App. C. 30; ante , p. 447; Hardie v. Addie , 20 D. 553; Macaulay v. Brownlie , 22 D. 975; Somerville v. Gray , 1 Macph. 768; Gallagher v. Piper , 16 C.B., N.S., 669; Feltham v. England , L. R., 2 Q. B., 33.It is difficult to define what is a common employment within the meaning of the rule; but here Neish's duties are those of a master, and cannot be put in the category of a fellow servant's duties. Therefore the Lord Ordinary was right, and the Inner House wrong.Sir R. Palmer QC., G. Young , anda. A.b. B. Shand , for respondents.—The decided cases both in England and Scotland on the doctrine of fellow' servants' negligence are somewhat confused and unsatisfactory; but that there is such a doctrine is clear. The main difficulty is as to deckling what is a fellow servant engaged in the same employment. It is obvious there may be fellow servants of different grades, and calling one a foreman or manager does not take him out

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Here it is conceded, that no personal negligence can be imputed to the masters, and that they used due care in employing competent fellow servants to act with the deceased.Though the doctrine, that a universal delegate or alter ego of the master is not a fellow servant within the doctrine referred to has been countenanced by one case of Somerville v. Gray , 1 Macph 768, yet in a later case— Wright v. Roxburgh , 2 Macph. 748 —the point is left open; and there is no sound distinction between the two cases.As the Judge's direction was erroneous or loose and uncertain, that of the Inner House oughl to be adopted, and the appeal dismissed.Quain replied—The point, whether the rule about fellow servants includes the case of a delegate or alter ego of the master, has been left undecided in England as well as in Scotland. It would seem to be sound principle, that, if a foreman be allowed to manage the business without having recourse to the directions of the master, and so to speak out of his own head, then he is, as regards the other servants, in the place of their master. As regards the Statute, the obligation to fence and ventilate is absolute, and cannot be got rid of by appointing a deputy to attend to it— Couch v. Steel , 3 E. & B. 402; Grey v. Pullen , 5 B. & S. 970.Cur. adv. vult.Lord Chancellor Cairns .—My Lords, the respondents in this case are coal and iron masters owning the Haughhead coal pit, near Hamilton, in the county of Lanark. This pit had, prior to the 21st November 1863, been sunk to the depth of ninety five fathoms, and contained four seams of coal. The upper seam called the Ell coal had been worked out, and the respondents determined to work the next underlying seam called the Pyotshaw coal. In order to open this seam from the side of the pit a scaffold was erected in the pit from and by means of which to drive the level in the Pyotshaw seam. This scaffold was completed on Saturday the 21st of November 1863. On the following Monday, the 23d of November 1863, Robert Wilson and Henry Wilson, son of the appellant, were engaged by the respondents to assist in driving this level, and on the 24th of November they went to Avork. The system of ventilation in the pit before the scaffold was placed there was of the usual kind, by downcast and upcast, and it is not suggested, that before the platform was erected the system of ventilation was defective in any particular. The platform, however, interrupted the free current of circulation of air in the pit, and although it is stated, that apertures were left in the platform on the upcast side for the return of the air from the shaft below, yet an accumulation of fire-damp appears to have taken place underneath the platform from and on the 25th November 1863. While Henry Wilson was searching on the scaffold with a light for a wedge which was missing, the light came in contact with the fire damp coming from beneath the scaffold, and an explosion took place by which the scaffold was blown up, and Henry Wilson killed on the spot.The present action was raised by the appellant, as the mother of Henry Wilson, for damages in consequence of his death, and an issue was appointed by the Lord Ordinary for the trial of the cause in the following terms:—“Whether on or about the 25th day of November, 1863, the deceased Henry Wilson, miner, Haughhead, the son of the pursuer, while engaged in the employment of 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?”It was not suggested, that the respondents themselves took any part in the erection of the platform, nor was any personal fault or negligence of any kind imputed to them. The general manager of their works in Lanarkshire was Mr. Jack. The manager of the Haughhead coal pit underneath Jack was John Neish, and subordinate to Neish was a man named Bryce, who attended to the underground operations. One Neil Robson, formerly a mining engineer, was a partner with the respondents, and it was under the general direction of the respondents and of Robson and Jack, that the working of the Pyotshaw seam was commenced. The charge of sinking the pit and making arrangements underground for working it was given to Neish. It was proved at the trial, and indeed not controverted, that Jack and Neish were competent persons for the work on which they were engaged, selected by the respondents with due care, and furnished by the respondents with all necessary materials and resources for working in the best manner.The cause was tried on the 2d of January 1867, and the three following days, before Lord Ormidale, and a verdict found for the appellant assessing damages at £100. Two exceptions were taken to Lord Ormidale's directions to the jury, the second of which was allowed by the Court of Session, and a new trial granted. It is on this exception alone, that your Lordships are now called to express an opinion, the appellant having appealed against the interlocutor of the Court of Session allowing the exceptions.The exception runs thus; “Lord Crmidale charged the jury; and,—after explaining, that in law the defenders were not answerable for the consequences of an accident which could not have been foreseen, and, by reasonable care and caution, prevented, or for the consequences of an

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The law applicable to cases of this kind has of late years come frequently under consideration, both in this House and in various Courts of Law in England and Scotland. The cases up to the year 1858 are all reviewed in the case of the Bartonshill Coal Company v. Reid , decided by your Lordships, and reported in 3 Macqueen's App. p. 266; ante , p.785. In that case my noble and learned friend, Lord Cranworth , explained with great clearness the difference between the liability of a master to one of the general public, and his liability to a servant of his own, for an injury occasioned, not by the personal neglect Of the master himself, but by the negligence of some person employed by him.As to the liability of the master to the general public, my noble and learned friend expressed himself thus:
“Where an injury is occasioned to any one by the negligence of another, if the person injured seeks to charge with its consequences any person other than him who actually caused the damage, it lies on the person injured to shew, that the circumstances were such as to make some other person responsible. In general, it is sufficient for this purpose to shew, that the person whose neglect caused the injury was, at the time when it was occasioned, acting, not on his own account, but in the course of his employment as a servant in the business of a master, and that the damage resulted from the servant so employed not having conducted his master's business with due care. In such a case the maxim respondeat superior prevails, and the master is responsible. Thus, if a servant driving his master's carriage along the highway, carelessly runs over a bystander, or if a gamekeeper employed to kill game, carelessly fires at a hare so as to shoot a person passing on the ground, or if a workman employed by a builder in building a house, negligently throws a stone or brick from the scaffold, and so hurts a passer by—in all these cases (and instances might be multiplied indefinitely) the person injured has a right to treat the wrongful or careless act as the act of the master. Qui facit per alium facit per se. If the master himself had driven his carriage improperly, or fired carelessly, or negligently threw a stone or brick, he would have been directly responsible, and the law does not permit him to escape liability, because the act complained of was not done with his own hands. He is considered as bound to guarantee third persons against all hurt arising from the carelessness of himself or of those acting under his orders in the course of his business. Third persons cannot, or at all events, may not know, whether the particular injury complained of was the act of the master, or the act of his servant. A person sustaining injury in any of the modes I have suggested has a right to say, I was no party to your carriage being driven along the roads, to your shooting near the public highways, or to your being engaged in building a house. If you chose to do, or cause to be done, any of these acts, it is to you and not to your servant I must look for redress, if mischief happens to me as their consequence. A large portion of the ordinary acts of life are attended with some risk to third persons, and no one has a right to involve others in risks without their consent. This consideration is alone sufficient to justify the wisdom of the rule which makes the person, by whom or by whose orders these risks are incurred, responsible to third persons for any ill consequences resulting from want of due skill or caution.”
But as to the liability of the master to his workman, my noble and learned friend thus expressed himself: “But do the same principles apply to the case of a workman injured by the want of care on the part of a fellow workman engaged together in the same work? I think not. When the workman contracts to do work of any particular sort, he knows, or ought to know, to what risks he is exposing himself: he knows, if such be the nature of the risk, that want of care on the part of a fellow workman may be injurious, or fatal to him, and that against such want of care his employer cannot by possibility protect himself. If such want of care should occur, and evil is the result, he cannot say, that he does not know whether the master or the servant was to blame. He knows that the blame was wholly that of the servant. He cannot say, that the

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I would only add to this statement of the law, that I do not think the liability or non-liability of the master to his workman can depend upon the question, whether the author of the accident is not, or is, in any technical sense, the fellow workman or collaborateur of the sufferer. In the majority of cases in which accidents have occurred, the negligence has, no doubt, been the negligence of a fellow workman; but the case of the fellow workman appears to me to be an example of the rule, and not the rule itself. The rule, as I think, must stand upon higher and broader grounds. As is said by a distinguished Jurist, “ Exempla non restringunt regulam sed loquuntur de casibus crebrioribus .”—(Donellus de Jure Civ. L. 9 C. 2, n.) The master is not, and cannot be, liable to his servant, unless there be negligence on the part of the master in that, which he, the master, has contracted or undertaken with his servant to do. The master has not contracted or undertaken to execute in person the work connected with his business. The result of an obligation on the master personally to execute the work connected with his business, in place of being beneficial, might be disastrous to his servants; for the master might be incompetent personally to perform the work. At all events, a servant may choose for himself between serving a master who does, and a master who does not, attend in person to his business. But what the master is, in my opinion, bound to his servant to do in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this, he has, in my opinion, done all that he is bound to do. And if the persons so selected are guilty of negligence, this is not the negligence of the master, and if an accident occurs to a workman to-day, in consequence of the negligence of another workman, skilful and competent, who was formerly, but is no longer, in the employment of the master, the master is, in my opinion, not liable, although the two workmen cannot technically be described as fellow workmen. As was said in the case of Tarrant v. Webb , 18 C.B. 799, negligence cannot exist if the master does his best to employ competent persons; he cannot warrant the competency of his servants.Applying these observations to the direction of the learned Judge to the jury in this case, I think the first error in that direction is, that it is pregnant with the suggestion to the jury, that if they found the scaffold to have been finished by Neish before the deceased was engaged to work in the pit, a liability for the accident was thrown upon the respondents which would not have existed, if the deceased had been engaged before the scaffold was finished. This was calculated, as I think, to mislead, and appears to have misled the jury.But I think there is another objection to the charge of the learned Judge. He asks the jury to consider, whether the respondents had delegated to Neish their whole power, authority, and duty, in regard to the arrangement or system of ventilation, and also in regard generally to all the underground operations, without control or interference on their part.I think there is nothing in the evidence which would warrant a question being left to the jury in these terms. The respondents had delegated no power, authority, or duty to Neish, except in the sense in which a master who employs a skilled workman to superintend a portion of the business delegates power, authority, and duty to the workman for that purpose. It was admitted, that the respondents gave no specific directions to Neish as to the manner or form in which the scaffold was to be arranged. They told him, that the Pyotshaw seam was to be opened, and they left to him the arrangements underground for opening and working it. And the learned Judge ought not, as I think, to have suggested to the jury, that this could be viewed in any other light than as the ordinary employment by the respondents of a submanager or foreman. I think, that the learned Judge ought to have told the jury, that, if they were of opinion, that the respondents exercised due care in selecting proper and competent persons for the work, and furnished them with suitable means and resources to accomplish the work, the respondents were not liable to the appellant for the consequences of the accident.An argument was addressed to your Lordships founded on the 23 and 24 Vict. c. 151, under which the appellant contends, that the respondents were absolutely bound by Statute to have an adequate amount of ventilation in the pit, and that they were liable as for a breach of this statutory duty. It is sufficient to say, that no such question is raised on this exception; nor was the learned Judge asked to give any direction to the jury on this score.Your Lordships will probably not express any opinion as to whether, in some other stage of this action, such an argument may or may not be maintained; and I only notice it at present in order to shew, that it has not been overlooked.On the whole, I must advise your Lordships to dismiss this appeal, with costs.Lord Cranworth .—My Lords, the direction of the learned Judge complained of, has been so fully stated by my noble and learned friend, that I need not repeat it at length. The substance of it was, that if the system of ventilation had been completed by Neish before Wilson was

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Lord Chelmsford .—My Lords, the only question which your Lordships are called upon to determine in the present appeal is, whether the second of the exceptions made to the direction of the learned Judge at the trial of the cause is good or not.The consideration of the direction which the counsel for the defender asked from the Judge is not absolutely necessary, because the Court of Session did not deal with the exception to the Judge's refusal to give this direction; but the case cannot, in my opinion, be satisfactorily disposed of without some reference to the mode in which the questions ought to have been submitted to the jury.The direction to which the second exception applies made the whole case turn upon the question, Whether Neish and the deceased were fellow workmen, engaged in the same common employment, which the Judge told the jury they could not be, if they were satisfied on the evidence, that the arrangements or system of ventilation in the Haughhead Pit at the time of the accident had been designed and completed by Neish before the deceased 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 in regard generally to all the underground operations without control or interference on their part.That the ventilation was faulty at the time of the accident there can be no doubt, nor that Neish had the superintendence and direction of all the operations in the pit; and, therefore, for the Judge to make the completion of the system of ventilation before the deceased was engaged to work in the mine, and the uncontrolled power and authority of Neish, the test to determine whether he and the deceased were fellow workmen, upon which the pursuer's right to recover was made to depend, amount to a direction to the jury to find a verdict for him.Although the learned Judge, in the course of his summing up, distinguished between keeping clear and in good working order the ventilation arrangement or system when completed, and a defect or fault in the arrangement or system itself, yet he does not appear to have left it to the jury to decide, whether the accident occurred through faulty ventilation or through casual obstruction in the ventilation, the latter of which appears from the evidence to be more likely to have been the case. But supposing it to have been quite clear, that the ventilation itself was defective, yet if it occurred in the course of the operation in the pit, it ought to have been distinguished from that system of ventilation, and putting the mine into a safe and proper condition for working, which, according to the opinion of the Lord Justice Clerk (in Dixon v. Ranken , 14 D. 420), it was the duty of the master, for whose benefit the work was being carried on, to provide. In the couse of working the Haughhead pit, it became necessary to arrange a system of what, for distinction's sake, I may call ventilation. This must be considered as part of the

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Lord Ormidale directed the jury, that Neish and the deceased could not be fellow workmen, if the system of ventilation in the pit had been completed by Neish before the deceased was engaged to work in the mine. There is a little want of accuracy here in the learned Judge's language. If the negligence imputed to Neish is to be taken to have occurred at the time of the completion of the system of ventilation, the deceased could not have then stood in the relation of fellow workman at all. I suppose the learned Judge meant to tell the jury, that if the negligence which occasioned the accident was finished and completed before the deceased entered the service, the question of fellow workmen did not arise. But assuming this to have been the direction, it was open to exception. If the platform in the Pyotshaw seam was originally of improper construction for the purpose of ventilation, there was undoubtedly a complete act of negligence on the part of Neish at the moment of its erection. But as he was bound to take care that sufficient ventilation was maintained during the whole time of the workings, as long as he omitted to do so, he was guilty of negligence, which continued down to the time of the occurrence of the accident. It was therefore incorrect on the part of the learned Judge to confine the act of negligence to the one period of the completion of the system of ventilation, and thereby to conclude the question as to Neish and the deceased being fellow workmen when the accident happened.But the learned Judge put another question to the jury, (whether in combination with the previous one, or independently of it, does not clearly appear,) which, if found by the jury, would, in his opinion, have prevented Neish and the deceased from being fellow workmen. That question was, whether the defenders had delegated to Neish their whole power, authority, and duty in regard to the arrangement or system of ventilation, and also generally in regard to all the underground operation, without control or interference on their part. The words “delegated” and “without interference or control” are ambiguous, or, at all events, misleading expressions. Every master may be said to delegate to his servant the power, authority, and duty of his particular department in the service without his interference and control, and yet he would be responsible to third persons for the consequences arising from the negligence of that servant in the performance of the duties so intrusted to him. What the learned Judge meant to tell the jury was, that if Neish had the complete power of engaging and dismissing workmen as he pleased, and the ventilation process was entirely left to him without the direction or control of the defenders, he was a superintendent, and not a fellow workman with the deceased.But if the learned Judge had so directed the jury, it would, in my opinion, be a misdirection. It has certainly been held by Scotch Judges of great eminence, that exoneration of a master from liability for injury arising to one fellow servant from the negligence of another does not take place where a servant occasioning the injury is placed in superintendence, control, or authority over the others. In the case of Macauley v. Brownlie , 22 D. 975, Lord Deas said, “think, that the foreman was the master's representative delegated to act for him in his absence, with power to give all the orders which he could have given, and that when the master so delegated his powers and duties in matters affecting life and limb, he must be responsible for the acts and omissions of representatives equally with his own.” And, in Somerville v Gray and Co ., 1 Macph. 768, the Lord President said, “I think there is room for a distinction among different classes of servants acting under the same master, and I do not think, that the House of Lords or the Courts of England have ever held expressly, that there is not. The difficulty is, where to draw the line of distinction.”But subsequent cases in England have clearly established, that there is no distinction as to the exemption of a common employer from liability to answer for an injury to one of his workmen from the negligence of another in the same employment in consequence of their being workmen of different classes. It is only necessary to refer for this point to Wigmore v. Jay , 5 Exch. 354; Gallagher v. Piper , 16 C. B., N. S., 669; and especially to Felt ham v. England , L. R. 2 Q. B. 33, where the Court thought, that the foreman was not in the sense contended for the representative of the master. The master still retained the control over the establishment, and there was nothing to shew, that the foreman or manager was other than a fellow servant of the plaintiff, although he was a servant having greater authority. As was said by Mr. Justice Willes in Gallagher v. Piper , “a foreman is a servant as much as the other servants whose work he superintends;” and he added, “We think this case ranges itself with a great number of cases, by which it must be considered as conclusively settled, that one fellow servant cannot recover for injuries sustained in their common employment by the negligence of a fellow servant, unless such fellow servant is shewn to be either an unfit or improper person for the purpose.”The learned counsel for the appellant, upon the argument at your Lordships' bar, laid an entirely new ground in support of the verdict founded upon the provisions of the Act of Parliament

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By the 10th section of the Statute in question certain rules are to be observed in every coal mine or colliery by the owner or agent thereof, and amongst them an adequate amount of ventilation is to be constantly produced in all coal mines or collieries to dilute and render harmless noxious gases, to such an extent, that the working places of the pits, levels, and workings, etc., shall, under ordinary circumstances, be in a fit state for working therein. And by the 22d sect., if any of the rules are neglected or wilfully violated by the owner or agent of the mines, such person shall be liable to a penalty of £20. It was argued, that, as the Statute has imposed upon the owner the duty of providing proper ventilation, a failure in that respect (no matter to whom attributable) renders the owner responsible for the consequences.In support of this proposition the learned counsel cited the case of Couch v. Steel , 3 E. & B. 402, which was an action by a seaman against a shipowner for neglecting to keep a proper supply of medicines on board the vessel, whereby the plaintiff's health suffered. Upon demurrer it was held, that although the Statute 7 and 8 Vict. c. 112, § 18, make it the duty of the shipowner to have medicines on board, and imposes a penalty for a breach of that duty, recoverable by a common informer, a seaman sustaining a private injury for the breach of that statutable duty was entitled to maintain an action to recover damages. In this case there was no question as to the liability of the shipowner—the decision being merely, that a person suffering damage from an omission of a duty was not deprived of his remedy because the Legislature had attached a penalty to such omission.But the case of Grey v. Pullen , ( 5 B. & S. 970,) which was also cited upon the point, has a more direct application. By the 10th section of the Metropolis Local Management Act 18 and 19 Vict. c. 120, whenever it is necessary for any person to break up or open the pavement, etc., of any street, he is with all convenient speed to complete the work, and make good the pavement, and in the mean time to fence and guard the place, and light it during the night, and, by § III, if he fail in any of these respects, he is to forfeit £5 and a further sum of 40s. for every day during which the offence continues. The defendant Pullen employed the other defendant Hubble, as a contractor to make a drain from his premises across a public footpath. The female plaintiff, passing along the footpath at night, fell into a hole or trench over the drain, and sustained injury. Mr. Justice Blackburn, who tried the cause, held, that there was no evidence to go to the jury, that Hubble had acted as the servant of Pullen, but as a contractor for the work, and that Pullen was not within the scope of the above mentioned section of the Metropolis Local Management Act, so as to be responsible for the performance of the work. A verdict was found against Hubble, with £65 damages, the Judge directing a verdict to be entered for the defendant Pullen, reserving leave to move to enter the verdict against him also. Upon this motion being made, the Court of Queen's Bench unanimously refused the rule, holding, that the Statute did not take the case out of the common doctrine, that if a person, in the exercise of a right, employs a contractor to do work, and the contractor is guilty of negligence in doing it, from which damage results, he and not the employer is liable. The Court of Exchequer Chamber, however, overruled the Court of Queen's Bench, and held that Pullen was liable to the plaintiff for the injury, upon the ground, that a duty was implied in the grant of the power to open the drain in the highway, in § 79 of the Act, and was expressed in § no, and that the statutable duty was created absolutely, and not by § III imposing a penalty, to be enforced solely by enforcing the penalty; and that the penalty imposed by § III was a cumulative remedy.I must confess, that this reasoning is not at all satisfactory to my mind. The statutable duty is no doubt created absolutely for the purposes of that Act, but it is a duty which, if unperformed, can only be enforced by the penalty, and this, for the protection of the public, is to be recovered against the owner or occupier, who causes the work to be done. If an individual sustains an injury, in consequence of the work being imperfectly or improperly performed, a civil liability is not imposed upon the owner, if without the statutable obligation he would not have been liable.The remedy is in one sense cumulative, because the imposition of the penalty by Statute does not take away the civil remedy; but the two proceedings have totally different objects, the one to punish the offence, the other to redress an injury. For the sake of the public, it may be right to make a person liable for acts which another has done on his account; but it would be a violation of principle to make him civilly responsible for such act, where he is in no legal sense a principal or master of the person doing them.I think, therefore, that the Statute of the 23 and 24 Vict. cap. 151, cannot have the effect of giving to the pursuer a right of action which she would not have had without it, and that the defence of the deceased being a fellow workman with Neish is open to the defenders notwithstanding the Statute. The interlocutor appealed from ought in my opinion to be affirmed.

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Lord Colonsay .—My Lords, I am of opinion, that the respondents had good ground for exception to the charge of the learned Judge who tried the case, and that the exception taken by them was rightly sustained by the Court. The charge must be read with reference to the case in which it was delivered. The part of it excepted to was not a mere abstract proposition in law. It contained, as the charge in such a case generally ought to contain, an explanation to the jury of what in the estimation of the Judge were the cardinal points in the case, to which their attention ought to be mainly directed, and his view of the law applicable thereto. But in doing so the points should be stated without the admixture of elements, either not properly within the case disclosed, or so little within it, that they ought not to be considered, and without ignoring elements properly within the case, and to which the minds of the jury ought to be directed. Ambiguous or equivocal expressions, whereby the jury may unconsciously be misled, ought of course to be avoided as far as possible.The cause of death was an explosion of fire damp, which blew up a scaffold or platform on which the deceased was working at the time. That occurrence is said to have been occasioned by faulty construction of the scaffold, inasmuch as sufficient provision was not made for the passage of air upwards. The scaffold had been erected in the shaft a few days previously for a temporary purpose. It was not part of the general arrangement or system of ventilation of the pit; but it was calculated to obstruct temporarily, to a certain extent, the free action of that system of ventilation, which is not alleged to have been previously imperfect. The purpose of the scaffold was to enable workmen to stand upon it, till by lateral works in the Pyotshaw seam they could obtain a lodgement in that seam. The person who ordered the erection of the scaffold for that purpose was John Neish, the manager of the defenders at that pit. The persons who actually constructed the scaffold were James Bryce, the underground manager, and James Wilson, a miner. They finished the operation on Saturday. On Monday the deceased and his brother were engaged to work at the Pyotshaw seam, and were taken down the pit and shewn where they were to work. On Tuesday morning the deceased began working. On Wednesday morning he resumed working, and his brother Robert joined him. On that day, after breakfast, the explosion took place. The case for the pursuer was this: He maintained, that it was the duty of defenders to have a proper system of ventilation in their pit; that they devolved that duty and the whole charge of the pit on the manager Neish; that Neish was in fault in not seeing that the ventilation was effectively provided for, and that the defenders having delegated their own powers and duties to Neish, are responsible for his fault.The position of Neish in the establishment was made a point of importance. He appears to have been the manager of the pit in question. He had under him Bryce, who is described as the underground manager or foreman, and he had over him another servant of the company named Jack, who is described as the general manager, taking a general superintendence and management of that mine and other mines belonging to the defenders. Jack gave from time to time general instructions to Neish in regard to the pit in question, leaving to Neish to carry out the details of the working, and to employ workmen for that purpose, and dismiss them at pleasure.Assuming that the injury was attributable to imperfection in the construction of the scaffold, and that such imperfection was owing to the fault or negligence on the part of Neish, the question came to be, whether the defenders were responsible for his fault.Cases of this class have of late years been frequent, and the law applicable to them has been much discussed in both ends of the island, and has been considerably matured by those discussions. The constantly increasing scale on which mining and manufacturing establishments are conducted by reason of new combinations and applications of capital and industry, has necessarily called into existence extended organizations for management, more gradations of servants, more separation or distribution of duties, more delegations of authority, and less of personal presence or interference of the master. The same personal superintendence and supervision by owners, or masters, common and beneficial in some mining establishments, is in many cases unattainable, and even if attainable, would not be beneficial. The principles of the law, however, have sufficient elasticity to enable them to be applied notwithstanding such progressive changes in the manner of conducting business.I hold it to be quite clear, that the liability of a master for injury done by the fault or negligence of his servant falls to be dealt with on different principles where the sufferer is a fellow servant engaged in the same common employment. The distinction was fully recognized by Lord Cranworth , and effect was given to it by the House in the case of the Bartonshill Company. Whether the present case does or does not belong to the latter class, it certainly does not belong to the former class. The deceased was not a stranger; he was at the time he received the injury, a workmen in the employment of the defenders in their coal mine. Neish was also in their employment there. If it was not alleged, that there was any personal fault or neglect on the part of the master, on what principle does liability attach to him? Does such liability flow from the nature of the contract of service under which the deceased was working? I think, that there are duties incumbent on masters, with reference to the safety of labourers in

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Is the fault attributed to Neish one of that character? I think it must be so regarded unless there was something in the relation of Neish to the defenders, or to the deceased, which deprives it of that character. It is not alleged, that the general system of ventilation of the pit, as it had existed anterior to the erection of the scaffold, was not good, or that Neish was not a fit man to be placed in the position he occupied. In neither of these respects was there any fault or negligence on the part of the defenders, nor is it alleged, that in any other respect there was personal fault on their part. But it is said, that Neish was not the fellow workman of the deceased; that he was in some sense, and to some effect, a representative of the defenders, holding delegated power from them, and that they are therefore liable.Now I agree with what has been said as to the terms fellow workman and collaborateur. They are not expressions well suited to indicate the relation on which the liability or non-liability of a master depends, especially with reference to the great systems of organization that now exist. And these expressions, if taken in a strict or limited sense, are calculated to mislead. The same may be said of such words as foreman or manager. We must look to the functions the party discharges, and his position in the organism of the force employed, and of which he forms a constituent part. Nor is it of any consequence, that the position he occupies in such organism implies some special authority, or duty, or charge, for that is of the essence of such organizations, as, for instance, in this case, if Bryce is admitted to have been within the principle of the fellow workman, although he was foreman and underground manager, and had the immediate charge of constructing the scaffold, and was primarily to blame for its defects, if any. Neish was one step higher, and may have been in fault for not detecting Bryce's error; but yet Neish was subordinate to a still higher servant called Jack. They were all links in the same chain. If the master was responsible for injury done to Wilson through the fault of Neish, on the ground that, strictly speaking, they were not fellow labourers, be would, on the same ground, have been liable for injury done to Neish through the fault of Wilson.Now the direction of the learned Judge, with reference to the circumstances of this case, appears to me to have been objectionable, for these reasons, first , It deals apparently with the alleged defect in the scaffold as if it was a defect in the general arrangement or system of ventilation of the pit, for which, in certain views, the defendant might be regarded as liable, whereas it was a ‘defect in the construction of a temporary structure, erected by order of Neish for certain working operations, whereby the free action of a good system of ventilation was temporarily interfered with, which raised a totally different question for the consideration of the jury in reference to the liability of the defendant for the fault of Neish. But the distinction does not appear to have been adverted to: Second , It appears to the jury, that, if the faulty scaffold was completed before Wilson entered into the employ of the defenders, a liability was imposed on the defenders which would not otherwise have existed, inasmuch as, in that case, Wilson and Neish could in no view have been fellow workmen at the time when the fault was committed by Neish. But if it was the duty of Neish to provide for the passage of air upwards in the shaft, that duty did not cease with the erection of the scaffold, but continued while the scaffold remained, and he was in fault so long as that duty was not performed. It was not merely the erection of the scaffold on Saturday, but the maintenance of it in a defective state until Tuesday morning, that caused the injury, if it was really caused by the defective construction of the scaffold, and consequently there was no room for the suggested disconnexion of Wilson and Neish as fellow workmen: Third , The direction points the attention of the jury to the question, whether Wilson and Neish stood in the relation of fellow workmen engaged in the same common employment, as the test of non-liability, without sufficient explanation of what constituted that relation; and in particular, without explaining that a diversity of duties and gradation of authority are not inconsistent with that relation, and without referring to the effect which might be produced on the liability of the master by a careful selection of proper persons to take charge of different departments in the working of the mine.On the whole, I am disposed to adopt the words of one of the learned Judges in the Court

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A point was made on the Statute of the 23 and 24 Vict. c. 151. I am not disposed to pronounce any opinion in reference to the effect of that Statute. I think there may be questions of considerable nicety arising upon it. It was a public Statute passed for the avowed purpose of giving greater safety to workmen in mines. It imposed duties on the owners of mines, and a question may be raised whether workmen engaging in the service of a mineowner may not be entitled to rely upon such duties being performed as being employed in the contract of service. That is a point of which I do not wish to express any opinion, because the subject we are now dealing with is apart altogether from any such question.Interlocutor affirmed, and appeal dismissed with costs.Solicitors: Appellants Solicitors , Thomas White, S.S. C.; Shaen and Roscoe, London.— Respondents Solicitors , W. B. Glen, S.S.C.; James Dodds, Westminster.