42

THE COLLIERY GUARDIAN.

January 1, 1915.

to the enquiries respecting the lamps in good faith, but
never with the idea that it was to lead to a prosecution, and
the fact was that, though the order only appeared to have
been given for 100 lamps, the order was given in the first
instance to cover the whole lot. The complaint now was
that they were not quicker with the job, but it was no use
closing their eyes to the fact that if there had been no explo-
sion on May 30, this case would never have been brought.
If these lamp cases had to be brought, then there was not
a single colliery in the whole district that could have
escaped. Mr. Walker would tell them that at the'time of the
change of lamps there were something like three-quarters
of a million required, and only 14 makers were appointed.
He submitted that under no circumstances should any
prosecution have been brought.

Mr. Jonathan Wroe, certificated manager, gave evidence,
stating that the question of lamps was dealt with by Mr.
Walker. Cross-examined, witness said Mr. Walker consulted
him in regard to the lamp question, and he agreed with
his opinion that the Mueseler type of lamp was what they
wanted. Mr. Walker dealt with the matter in his own
hands. He was present at the interview with Messrs.
Teale’s representatives, and they wished them to get a lamp
approved which was in all respects like that they were
using.

Mr. D. R. Morgan, assistant at the Leeds University,
gave evidence regarding the test made of the unapproved
lamps, which was successful. The lamps were not sub-
mitted to any mechanical test.

Mr. Ed. Wells Teale, managing director of Messrs.
W. Teale and Company Limited, makers of approved lamps,
Manchester, gave evidence bearing out Mr. Neal’s statement.
At the time the order was given they were overwhelmed
with work, and he believed it was the fact that other
makers were also busy. Cross-examined, witness said Mr.
Walker gave instructions for the conversion of the whole of
the lamps required. They could not have given delivery
earlier.

Mr. Geo. Blake Walker, agent of the colliery company,
said he had held a manager’s certificate for 40 years, and
he had taken an active part in the management of the
colliery. Mr. Wroe only in consultations with him took
any part in the ordering of the lamps. Witness understood
the Home Office letter referred to as giving permission to
use that type of lamp until January 1916. When it was-
decided that boneted lamps only should be used, he
instructed Mr. Teale to put the lamps in order in accord-
ance with the Regulations. In regard to the statement
that they would require 2,000 lamps, witness said probably
one-half of the lamps were not worth reconstructing. Looking
back at the matter, witness said he did not consider there was
any great urgency, having regard to the letter from the
Home Office, and the printed footnote on the Regulations.
Witness said he did not favour the idea of having more than
one type of lamp at the colliery, as it was possible for the
men, in cleaning the lamps, to get mixed up. Cross-
examined, witness said he had a distinct recollection that
the Home Office coupled with the Order the condition that
the requirements were to be complied with “ as far as was
practicable,” in regard to the getting of supplies. He
agreed that delay occurred because he was determined, if he
had to have a bonneted lamp, to have the bonneted Mueseler,
and that Messrs. Teale and Company should supply
it. Witness repeated that he did understand from
the letter of the Chief Inspector that they might go on using
the Mueseler lamp as they then used it until they could get
their lamps replaced. Further questioned as to the inter-
pretation of the letter of the Chief Inspector, Mr. Walker
said they did not seek to be absolved from the Act of Parlia-
ment. He regarded it as a continuing permission until
they could get the lamps. He was also relying upon the
terms of the Order as understood in the case of providing
dustproof covers. Though under the Act a certain day was
specified, they were going on making as many as they could,
and probably it would be the end of the year before they
could get through the whole. He was thinking of the lamps
in the same way.

The Chairman announced that they were unanimously of
opinion that the company had made all reasonable efforts
to comply with the authorities and the Home Office, and
the cases would be dismissed.

Stopping the Fan.

The other charges against Mr. Walker and Mr. Wroe were
next heard, viz., for a breach of section 29, subsection 1, of
the Act, in that an adequate amount of ventilation was not
constantly produced in the mine.

Mr. Pope, in opening, urged that these charges were much
more grave than those heard previously. The providing of.
an adequate amount of ventilation must rest primarily upon
the agent and manager, and there was no excuse on their
part. Good intentions could not be a defence to an Act of
Parliament, or they would never know where they were in
matters relating to safety. The question of ventilation
must stand absolutely in the forefront in connection with
the provisions as regarded safety. Before anyone inter-
rupted, or was responsible for interrupting the ventilation,
they should be satisfied beyond all reasonable or possible
doubt that no men were left in the part of the mine when
the ventilation was stopped. He would prove that the
steps taken on this occasion, and such orders as were given,
were quite inadequate to secure the carrying out of the
provisions of the Act by the defendants. The responsibility
was of a very grave character, and in the matter of ventila-
tion, rested upon something much more than the fact of
an underling like a deputy failing to remember the carrying
out of a particular order he might have received. The
obligation was much higher than that, and it would not be
a defence to say that the order was not carried out by the
deputy. They were there to deal with the fact that the
ventilation was inadequate for a period of a quarter of an
hour, through the unfortunate interruption with the ventila-
tion fan. Subsequently, experiments were made, and these
would show that whereas under normal circumstances this
fan was abundantly adequate to maintain the excellent
ventilation, samples of air taken at the working face
when analysed were found to contain 0’65 per cent, of gas.

Mr. Abbott gave evidence of his visit to the pit after the
explosion, and detailed the experiments made four days
after.

Mr. Frank F. Mairet, engineer at the colliery, stated that
he had no written instructions from the manager with
regard to the stopping of the fan. It was about . the
beginning of May that he received permission to stop the
fan on Saturdays. He discussed the matter with Mr.
Walker, who said it would be all right, but he must tell
Mr. Wroe. He did so, and got permission from Mr. Wroe.

Mr. Mottram expressed the opinion that the ventilation

was inadequate owing to the stoppage of the fan, which
allowed gas to accumulate. Before the fan was stopped the
manager should give written instructions that .no inter-
ruption should be made at all until all the men were out of
the pit.	\

Mr. Neal, for the defence, said one or two. matters were
raised for the first time, so far as he knew, relative to the
duties of agent and manager. He said, on the express
instructions of Mr. Walker, that he did not wish to escape
from any obligation which the law fixed upon him as agent,
and the same in regard to Mr. Wroe. But the position of
agent was not well defined by the Act. Quoting several
sections of the Act, Mr. Neal submitted there could be no
offence by Mr. Walker if he proved that any contravention
or non-compliance with the section was due to causes over
which he had no control, and against the happening of
which it was impracticable for him to make provision. He
would prove that was so, but he repudiated the suggestion
that if an agent took part in the management of a mine,
he made himself responsible for all the criminal
offences which anyone might commit under the Act. Mr.
Walker, as agent, gave his valued technical experience to
the working of the colliery, and to say that because he did
that he was responsible for this offence would be to strain
the law. In regard to Mr. Wroe, he suggested the prosecu-
tion might have gone the whole hog, and charged him with
manslaughter, as to submit him to this indignity of prosecu-
tion. Mr. Neal claimed there was no evidence of any desire
on the part of the colliery company to avoid expense in the
plant. Mr. Wroe gave specific directions to the under-
managers, who notified the overmen and deputies of the
alteration of the hour for the stopping of the fan, and that
all men were to be out of the pit at 1.30 on the afternoon.
The failure in the case was due to the fact that two overmen
failed to get all the men out of the pit in time. The matter
had thus gone a long way beyond Mr. Walker and Mr.
Wroe, and though the prosecution knew that perfectly well,
they felt they would get a victory yet in regard to the coal
cutting machine or the lamps, but a victory of some sort they
must get.

Mr. Neal called Mr. Wroe, and evidence was given also
by under-managers, deputies, and an overman, all of whom
said that the men" were told to be out of the pit before the
changing of the fan at the altered hour.

After consultation, the chairman (Mr. J. T. Field)
intimated that they dismissed the summonses.

Mr. Pope asked if the decision was given on a point of
law, and the Chairman replied they decided upon the
evidence.

LAW INTELLIGENCE.

SCOTTISH COURT OF SESSION.

FIRST DIVISION.—December 4.

Before the Lord President and Lords Mackenzie and
Skerrington.

Workmen’s Compensation : Pithead Contractor’s Duties.

Wemyss Coal Company v. Morris.—This was a stated
case under the Workmen’s Compensation Act, 1906, from
the Sheriff Court at Kirkcaldy, in which the Wemyss Coal
Company Limited, Lochhead Colliery, Wemyss, brought
under review a decision of Sheriff-substitute Umpherston
finding John Morris, pithead contractor, Mayville, Coaltown
of Wemyss, entitled to compensation at the rate of 20s. per
week. There were no defined limits to the sphere of Morris’s
employment as pit-head contractor, and he and his staff
were the handymen about the pithead and were constantly
called on to assist at all kinds of work. On the morning
of September 10, 1913, a belt used for taking the empty
hutches back to the pit mouth was slipping. Some powdered
resin had been applied to the pulley with only slight success.
Morris introduced some spun hemp between the belt and
the pulley and this was effective for an hour. Thereafter he
introduced more hemp, but it failed to stick to the pulley,
as the resin was exhausted. He went to a platform close
by, where he knew some resin had. fallen when it was being
thrown on the pulley, to gather it. While rising his left
hand was caught in the end of the hemp which was hanging,
and he was carried round the shaft several times and
seriously and permanently injured. It was Morris’s duty
to get a slipping belt to go if he could. The appellant
argued that the respondent was injured while doing
something outside his employment.

The Division answered the question in the affirmative,
with expenses to the respondent.

The Lord President said the findings of the Sheriff-
substitute appeared to him to lead inevitably to the
conclusion that at the time of the accident the workman
was engaged on the work for which he was employed both
in kind and method.

The other judges concurred.

Workmen’s Compensation : Wrong Procedure.

Dyer v. Wilsons and Clyde Coal Company Limited.—
This was a stated case on appeal under the Workmens’
Compensation Act, 1906, for Robert Dyer, miner, 69, South
Glencraig, Glencraig, against Wilsons and Clyde Coal
Company Limited, coalmasters, Glencraig. The appellant
sustained a fracture of his left thigh as the result of a fall
of coal at the face while in the respondents’ employment on
January 17, 1913. He was paid 17s. 7d. per week of
compensation till January 13, 1914, when the respondents
stopped compensation on the ground that the appellant
was fit for light work. The matter was referred to a
medical referee, who reported that the appellant was fit to
do light work such as looking after a motor or light
labouring work. The appellant applied at five pits in the
district for work, but was unable to procure it, and he now
claimed full compensation. Sheriff-Substitute Umpherston,
at Dunfermline, refused the application as irrelevant.

The Division now held that the Sheriff-Substitute was
wrong is dismissing the Case as irrelevant, and their lord-
ships remitted the case to him to proceed in the arbitration.

The Lord President said he could not discover any
irrelevant statement in the claim. It might be quite true,
as the arbitrator said from his own knowledge, that the
application at five pits by the appellant was not a sufficient
test of the Lochgelly district, but nevertheless it might be
also perfectly true that application at these five pits
afforded a perfectly adequate test of the labour market so
far as this workman was concerned. He was undoubtedly
entitled to have before him his own knowledge of the
labour market in the district, but, according to his lord-

ship’s view, he was bound, if evidence was tendered, to hear
that evidence, to consider it, and to act upon it or reject it.

Lord Mackenzie concurred.

December 9.

Workmen’s Compensation : Arbitrator’s Powers.

Adam v. J. Combe and Son. — This was a stated case
on appeal under the Workmen’s Compensation Act, 1906,
for Robert Adam, heating engineer, 35, Grove-street,
Glasgow, against James Combe and Son, heating and
ventilating engineers, 103, North Hanover-street, Glasgow.
The questions for the opinion of the court were:—Was it
competent for the arbitrator, in the absence of the appellant,
to end the compensation, and did the 'application of the
appellant to state a case bar the arbitrator from proceeding
further with the arbitration ?

The court answered the first question in the affirmative,
the second in the negative, and found respondents entitled
to expenses.

December 10.

Workmen’s Compensation : Accident Claim and
Compensation.

R. Gray v. North British Railway Company.—Ohis was
a reclaiming note for the pursuer in the action by Robert
Gray, engineman, Blackrig Farm, Slamannan, against the
North British Railway Company for .£500 damages for the
death of the pursuer’s son, Thomas Gray, brakesman, in the
employment of James Nimmo and Company Limited, coal
masters, Longriggend. On June 14, 1910, the deceased was
standing in a wagon belonging to the defenders, which was
being shunted on his employers’ private branch line, when
the fore wheels ran out from below the wagon, which soon
afterwards collapsed on its side. Gray was thrown to the
ground, and sustained severe injuries, from which he died
on September 21, 1913. It was said that the beam of the
wagon was black and rotten, and incapable of giving a firm
hold to the axlebox and wheels which were attached to it.
The defenders denied fault, and explained that, owing to
the points not being in a proper position, the wagon
became derailed and ran 50 yds. off the rails. They explained
that the wagon only three days before came from overhaul
and repair. The defenders further said that the deceased,
in respect of the injuries he sustained, claimed compensation
from. his employers, and was paid a sum amounting to
£83 16s. 7d.

In the Outer House, Lord Cullen held that by claiming
and receiving full compensation from his employers under
the statute the deceased’s claim, if he had one, was
excluded and satisfied. That being so, it appeared to his
lordship that the pursuer’s case was incompetent. The
defenders were found entitled to expenses.

The Division adhered to the interlocutor of the Lord
Ordinary, with expenses to the defenders. The Lord
President said the deceased elected to claim compensation,
and recovered the full amount of compensation from his
employers. For aught that appeared, the railway company
might require to pay Messrs. Nimmo and Company the
amount which they had paid to the deceased workman.
But it was out of the question to maintain that the
railway company were still to be liable to a claim at the
instance of the deceased’s representatives in respect of a
mishap for which the deceased himself claimed and
recovered full compensation.

December 15.

Workmen’s Compensation : Disablement by Industrial
Disease.

M‘Taggart v. W. Baird and Sons.—The First Division
advised a stated case on appeal under the Workmen’s
Compensation Act, 1906, by which Bernard M'Taggart,
miner, 5, Muir-street, Larkhall, brought under review a
decision by Sheriff-substitute Shennan at Hamilton,
refusing compensation in an arbitration with William Barr
and Sons Limited, Allanton Colliery, Hamilton, the
appellants’ employers. The appellant, who was 50, had
spent his working life as a miner chiefly in safety lamp pits.
On July 11, 1913, he received an injury to his left eye from
a splinter, in the course of his work in Allanton Colliery,
causing total incapacity. The respondents paid compensa-
tion down to March 19, 1914, when it stopped. On April 24,
1914, the appellant obtained from a certifying surgeon a
certificate that he had been disabled for work in respect of
miner’s nystagmus since March 26,1914. On March 19, the
injury to the left eye on July 11, 1913, had completely
healed, but symptoms of nystagmus were visible. It was
not proved that the accident had caused or accelerated the
nystagmus. Between July 11, 1913, and March 26, 1914,
the appellant did no work. The Sheriff-substitute held
that the appellant had not proved that the nystagmus was
due either to the accident or to the nature of his employ-
ment within the twelve months prior to March 26, 1914.

The Court affirmed the Sheriff-substitute’s decision, and
found the respondents entitled to expenses.

The Lord President said the question which arose was
whether or not the workman was entitled to claim the
benefit of the statutory presumption set up by Section 8 (2)
of the Act in favour of a workman. To enable him to do
so three prerequisites must exist. In the first place he must
have been employed during the preceding 12 months in
a process set out in the schedule. That requisite was
complied with here. The appellant was employed in
mining. Secondly, the disease which caused the disable-
ment must be one set out in the schedule opposite the
process of mining. That prerequisite was also complied
with, because the disablement was through miner’s
nystagmus. The third prerequisite was that at or
immediately before the date of disablement he must have
been employed in the process—mining in this case. That
statutory prerequisite was not, in his lordship’s opinion,
complied with in this case. At the date of disablement the
man was out of employment, and immediately before the
date of disablement he was likewise out of employment.
Eight months had elapsed during which he had been idle,
and that period therefore had transpired between the date
of his last employment in mining and the date of the
disablement. His lordship was of opinion that the
expression “ at or immediately before ” related to sequence
in time, and not to sequence of employments. On the facts
found, his lordship held that the Sheriff-substitute was
entitled to come to the conclusion at which he had arrived.

The other judges concurred.