I am clearly of opinion that the accident did not arise out of or in the course of such employment. Admittedly the injured man's ordinary or normal duties were not connected with the working of the engine. It was not a case of emergency, or one in which the injured man was furthering the interests of his employers. The circumstances disclose simply an arrangement for helping the engineman, and enabling him to come on duty somewhat later in the morning. The case is entirely different from those in which a workman, acting in an emergency and with his master's interests in view, does something beyond the strict scope of his ordinary duties. In such cases he will probably be held entitled to compensation. The law is on this point well stated by Lord M'Laren in Menzies v. M'Quibban, March 13, 1900, 2 F. 732, who says at page 736—“Any accident occurring to a workman while engaged in promoting his master's interests is prima facie within the category of cases considered by the statute as constituting a claim. …We are familiar with the principle of common employment as used in the limitation of claims, and this principle may also be invoked to aid the interpretation of the statute, because impliedly each workman, besides having to perform the special work for which he is hired, owes something to the community of fellow-workers, and must be helpful according to his experience where necessity arises.” That means where any emergency arises, and where it is the duty of all workmen where danger threatens to do their best to prevent an accident. An excellent illustration is the case of a runaway horse in a yard or a dock which is stopped by some workman who has nothing to do with its management, but who rushes forward and does his best to prevent an accident. The present case, however, presents no such features. There was no emergency; no necessity for the respondent's intervention; no interest of his employers to be served. I am accordingly
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Lord Kyllachy — I am of the same opinion. The Sheriff-Substitute seems to have felt himself constrained by the decisions to hold that the accident in the present case was one arising out of and in the course of the respondent's employment. And it is certainly true that the tendency of recent decisions has been to give a very wide construction to that statutory expression, but it is necessary to draw the line somewhere; and it appears to me to be quite impossible to hold that an accident happening to a workman in such circumstances as occurred here was one which in any reasonable view arose out of and was in the course of this workman's employment.
Lord Low concurred.
Lord Stormonth Darling was not present.
The Court answered the question in the negative.
Counsel for the Appellants— Hunter, K.C.—Constable. Agents — Bonar, Hunter, & Johnstone, W.S.
Counsel for the Respondent— C. D. Murray. Agents— Wishart & Sanderson, W.S.