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The Court held (the Lord Justice-Clerk diss .) that it appeared from the pursuer's averments that he was working in face of a known danger, and dismissed the action as irrelevant.
Patrick M'Ternan, labourer, 213 Canongate, Edinburgh, brought an action in the Sheriff Court at Edinburgh against Messrs White & Bee, builders, Edinburgh, for £200 as reparation for injuries sustained by him in the course of taking down an old building while in their employment.
The action was laid both at common law and under the Employers Liability Act 1880.
The pursuer pleaded—“(1) The pursuer having been injured through the fault of the defenders in employing or retaining in their service an incompetent servant, they are liable in reparation. (2) In any view, the defenders, in the circumstances condescended on, are liable in compensation to the pursuer under the Employers Liability Act 1880.”
The Sheriff — Substitute ( Rutherfurd ) sustained the defenders' first plea-in-law and dismissed the action.
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