Scottish Court of Session Decisions

The Lord Justice-Clerk (after narrating the circumstances) said that there were three matters of fact involved in the issue. The first was that the deceased met his death by the breaking of the rope; the second, that the breaking arose from defect or insufficiency; and the third, that the defect or insufficiency was imputable to the fault of the defender. There was no dispute about any of these except the last. The only question, therefore, was whether the defender was in fault. That fault might be either personal and individual, or on the part of some one for whom the defender was responsible. He was not disposed to say there was no case (though there was not a strong one) to go to the jury of the former kind. But the other was the delicate part of the case. It was maintained by the pursuers, and maintained with more force as regards the evidence, that the fault which caused the occurrence in question was that of Gemmell, who was described as underground oversman of the defender. Now, whether the defender was to be made answerable for fault on the part of Gemmell (assuming fault to be distinctly proved), depended on whether this fault was committed by Gemmell when he was acting in a representative capacity, performing a duty delegated to him by his master, or whether the fault consisted in his doing or omitting something not within the scope of the authority delegated to him. Upon this point, the evidence was extremely defective. It was absolutely necessary that this matter be cleared up, in order that the Judge might give the jury the proper directions in law, and that the jury might have distinctly before them the grounds on which they were to proceed in returning their verdict. It was this defect in the evidence which had led to the unsatisfactory result in the trial of the cause. A general verdict had been returned under a general direction from the Judge, from which it was impossible to tell upon what views the jury had proceeded. In this state of matters it was unnecessary to dispose of the exceptions taken at the trial. If it had been absolutely necessary to look to these, he would have had considerable difficulty in disallowing the exception to the Judge's charge. The want of attention to that which was the turning point of the case—whether Gemmell was acting within the scope of the authority delegated to him—had perhaps led to the charge being worded as it was, in such general terms as to leave him in doubt whether the jury had this matter properly before them. The case has not been satisfactorily tried, and there ought to be a new trial.

Lord Cowan concurred. His Lordship thought it was not clear in what capacity Gemmell had acted. Could it be said that Gemmell's fault was the fault of the defender? That entirely depended on the capacity in which he acted, and his powers. There was no distinct or clear evidence on that part of the case. Assuming the fault to be Gemmell's, the question came to be whether his actings were those of a person to whom the furnishing of the rope had been delegated, or whether the defender had done his duty, and the fault of Gemmell was such as could not affect him. This part of the case had been left in great obscurity.

Lord Benholme was not prepared to dissent from the opinions delivered. The case had been unsatisfactorily tried. The extent to which the master had delegated his duties to Gemmell must be attended to on the new trial of the cause. However, he thought that the fair meaning of the charge was, that the jury had been directed that the defender was liable for Gemmell's fault within the line of his delegated duties. That was what was meant by the words “acting as oversman,” to which exception had been taken on the ground of their generality.

Lord Neaves agreed that there should be a new trial. It would be wrong in such circumstances to anticipate this by a statement of the law applicable to the case, which was attended with great nicety and delicacy. If he had been satisfied that the verdict had proceeded upon the footing that there had been personal fault on the part of the defender a new trial would have been unnecessary. But there was very slight evidence to inculpate the defender personally. It was therefore necessary to see that the other ground upon which liability might be attached to the defender was clearly before the jury in the evidence, and in the Judge's charge. Upon the footing that Gemmell was to blame and not the defender, were the evidence and the charge bearing upon it in such a satisfactory state as to enable the jury to see their way clearly through the case? Two propositions might here be maintained. One of these was that the defender was liable for all Gemmell's actings. The other was that he was liable for none of them. He was not prepared to affirm either of these. A great deal depended upon what the oversman was. This was not cleared up in the evidence. An oversman, as a master's delegate, was one thing; as a superior servant he was quite another. He frequently acted in both capacities. He was sometimes a master's delegate, and sometimes a collaborateur with the other workmen. In which of these capacities was Gemmell acting in the transaction in question? There was no clear information on this point. There was no statement of the bounds of his duties. There was much nicety of fact in the case which had not been brought out in evidence, though it had been argued upon hypothetically in the discussion.

The Court therefore granted a new trial, reserving all questions of expenses.