M'Inally v. King and Others

His father John M'Inally raised an action in the Sheriff Court of Lanarkshire, against the owners and lessees of the quarry, Archibald King, John Scott, and Thomas Gilchrist, trustees of the late James King, Coatbridge. He averred that the accident was caused by the fault of the Page: 16 ↓

The defenders stated that no watchman was in use to be sent to the top of the bank until the supports or “legs” left for upholding the bank were being removed, when it was the duty of the men engaged at the work to send one of their number up to watch for the ground giving way. In the circumstances the workmen ought to have been extra careful as there had lately been frost followed by rain. The accident was the result of a damnum fatale .

The pursuer pleaded—“(1) The pursuer having suffered loss, injury, and damage through the fault or negligence of the defenders, as trustees foresaid, or of those for whom they are responsible, the pursuer is entitled to decree, in terms of the first alternative conclusion of the petition.”

It was proved that there was a newly appointed foreman in charge of the work that morning, and that he did not send any man up to the top to watch, while the men who were engaged “holing” could not see if a watchman had been placed or not. The evidence was conflicting as to whether it had been the practice of a former foreman to send a man to the top to watch while the work was going on. The parties were agreed that the average wages of a man in the same position as the deceased were £46, 16s. per annum.

The Sheriff-Substitute ( Birnie ) issued an interlocutor finding that the deceased John M'Inally had been killed while in the employment of the defenders, and that his father had suffered damage thereby to the extent of £50, but that the deceased had been guilty of contributory negligence. He therefore assoilzied the defenders from the conclusions of the action with expenses.