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Benjamin Patrick M'Manning, labourer, Dunfermline, raised an action against Easton Gibb & Son, Limited, for decree for £250 as damages for personal injury received by him while in the defenders' employment on 22nd June 1910.
[The words in italics were deleted, and those underlined were added, by amendment in the Outer House.]
The defenders denied liability and, inter alia , pleaded — “(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed.”
The Lord Ordinary ( Cullen ) on 29th November 1910 approved of an issue for the trial of the cause.
The defenders reclaimed, and argued — The action was irrelevant. The ground of fault alleged was the absence of a banksman to scotch the crane when necessary. But pursuer failed to aver how the banksman could have prevented the accident or at what point of time he could intervene. The absence of the banksman was not connected on record with the accident. The case came very near the maxim volenti non fit injuria , because pursuer was not a mere workman but a superintendent, and averred that he made complaints.
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