Now, the sum actually awarded is small but I do not think the question between the parties as it went to the jury was really a question of amount at all, The defenders might have made it a question of amount by making a tender. They did not think fit to do so, but, on the contrary, they maintained vigorously, as they were quite entitled to do, that they were not answerable for any fault whatever, but that they had exercised all reasonable care and prudence in taking precautions for the safety of their workmen. That was the question, and on that the jury found a verdict against them. That was a question of fact well fitted for jury trial, because it depended on conflicting evidence which was mainly circumstantial, and although I am quite satisfied with the verdict of the jury, the facts as presented to them might have suggested different views to different minds. It is therefore quite possible that if the case had gone to the Sheriff his judgment might have been appealed to the Sheriff-Depute, and his judgment again to this Court, so that there might have been three discussions instead of one. It is therefore by no means certain that the course now recommended to the pursuer would have been less expensive than that which he chose for himself. But then I am of opinion that it was for his advisers to consider which course should be taken, and that the pursuer had a right under the statute, if so advised, to say whether he preferred the verdict of twelve average jurymen to settle the matter once for all, or to have the judgment of a single. Judge subject to a first and second, and possibly even to a third appeal, if any question of law could have been extracted from the findings of fact.
On the whole case therefore I am of opinion that there is not sufficient ground for depriving ths pursuer of the small amount of damages awarded to him by the jury by the process of depriving him of the expenses of obtaining the award. I think the pursuer has been successful, and is therefore entitled to his expenses, and that there is no special reason for diminishing his claim.
The Lord President , Lord Adam , and Lord M'Laren concurred.
The Court applied the verdict and gave decree for the amount of the award with expenses.
Counsel for the Pursuer and Appellant— Gunn. Agents— Mackay & Young, W.S.
Counsel for the Defenders and Respondents— Hunter. Agents— W. & J. Burness, W.S.