July 4, 1873. Traills v. LORD JUSTICE-CLERK.-The Court are always unwilling to differ from the Small & Boase. Judge who has taken the proof as to the import of the evidence, as he has many advantages, from having heard the evidence and seen the witnesses, which a Court of review does not possess. But on the best consideration I have been able to give to the proof as recorded in this case I cannot agree with any of the findings of the Lord Ordinary. Divested of immaterial details the facts seem to be these:-The machine in question was one for carding tow, which was worked by a man at the feeding end, and a boy at the end of discharge. It consisted of a carding cylinder, revolving with considerable velocity, and several wheels, which were essential to certain parts of its operation. These wheels were placed on the right-hand of the machine looking from the feeding-table, and consequently on the left-hand of the boy, who worked opposite it, where the tow was discharged. Part of the machinery was worked by a belt passing over two revolving cylinders, by the removal of which by the hand the machine, when choked, could be relieved without stopping the general motive power. This machine was placed in a building with the right portion of it, on which the revolving wheels were situated, within thirteen or fourteen inches of the wall; the belt in question worked in this space. Some three months before the pursuer, who was a boy under fourteen, was engaged at this machine, its mechanism had been completely covered in and fenced, but owing to some alterations on it the fencing had been removed, and when the pursuer commenced the working there was nothing to prevent him going between the machine and the right-hand wall. His duty was, when the machine got clogged, to remove the belt in question from the cylinders on which it worked, and thereby suspend for the time the revolution of part of the machine until it cleared itself. It appears from the evidence of the pursuer that he was in the habit of performing this operation by squeezing himself between the machine and the wall, where the wheels in question were revolving, and so making his way to the cylinder on which the belt worked at the opposite end of the machine, and after taking off the belt when the machine got choked to return in the same way between the wheels, which still continued to revolve, and the wall. He had only been engaged two days at the machine when, according to his account, on returning from lifting the belt, his sleeve caught in one of the revolving wheels, and his right arm was so much injured that it had to be amputated below the elbow. The present action has been brought against the mill-owners to recover damages for his injury. The first question is, whether the defenders were in fault for not having this machine fenced. Under the statute 7 and 8 Vict. cap. 15, sec. 51, it is enacted, inter alia, that all parts of the mill gearing in a factory shall be securely fenced, and had that statute regulated the present question I entertain no doubt that the machine was not properly fenced. It is quite true that the machine was placed against the wall, but not so placed as to prevent a boy passing in the way the pursuer describes. But it is said that this statute was altered by the Act of 1856, by which the operation of this clause was limited to such machinery as women and young persons are liable to come in contact with, and it is pleaded that the true reading of that statute is that no fencing is required unless in such a situation as children or young persons, in the ordinary and regular course of their employment, are in danger of coming in contact with, and thus it is argued that if the pursuer was working the machine according to ordinary rule no fencing was required. I am of opinion that such is not the true construction of the Act of 1856, the true meaning of which is to limit the operation of the 7th and 8th Vict. to such parts of the gearing as, from its physical position, are accessible to women and young persons in the course of their work. That Act was passed in consequence of a decision by the Queen's Bench in a case of Doel v. Shepherd, Jan. 18, 1856, 26 Law Times, 216, 5 Ellis and Blackburn, 856, in which the question arose whether the statute of 7 and 8 Vict. applied to machinery which was in such a situation as not to be dangerous to any one, the machinery in that case having been seven feet from the ground. But Lord Campbell, Chief Justice, No. 145. said, "the sooner such an interpretation of the statute is corrected the better; the Legislature has not said that when there shall be danger machinery shall be July 4, 1873. fenced, but has declared in the most absolute manner that in all the cases men- Small & Boase. tioned the machinery shall be fenced." As this judgment, which was contrary to the opinion of Mr Justice Cresswell, imposed on the mill-owners a very serious obligation in regard to those parts of the machinery that were truly not accessible to children and young persons engaged in mills, the limiting statute of 1856 was passed; but it was by no means intended to restrict the operation of the 7th and 8th Vict., along with which its provisions were directed to be read, further than to render it unnecessary to fence machinery in regard to which there was no reasonable risk that children and young persons should be exposed to it. In the present case this machine had been previously fenced. The evidence shews that it was subsequently fenced; and Paterson, who was in the employment of the defenders at the time, says that he thinks the fencing should have been replaced, and that the machine was not safe without it. It certainly does not necessarily follow that because the machine was not. properly fenced every accident thereby occasioned to those employed in working it can found a claim of damages against the mill-owner. In the case I have referred to as decided by Lord Campbell it was found that although the machine was not properly fenced yet that the injury having been caused by the improper act of the man injured he was not entitled to recover. But that, in the first place, was the case of an adult under the former law. It is obvious that the continuation of the former law as regards children and young persons necessarily implies that they are more likely to come in contact with the dangerous parts of the machinery than adults, and the object of the statute was to have the machinery so fenced that in the course of their ordinary employment they could not come in contact with it. Without saying that a boy under fourteen cannot be guilty of contributory negligence where the statutory provision has been violated I do not think that such is the case here. The evidence leaves it very much in doubt what the instructions were which the pursuer received. The defender says that he told him always to go round by the feeding end of the machine. The pursuer himself says that he received no such instructions; and the man Wallace, who fed the machine and was there all the time until the accident happened, says that he cannot tell whether the pursuer went round by the back,—that is, by the feeding end,—and at last says that he sometimes went the one way and sometimes the other. The result of the evidence, to my mind, is that the boy was in the habit of squeezing between the wall and the machine, as the shortest way, when he required to take the belt off, and that he never was checked for doing so by the man Wallace, who stood at the other end of the machine. It is remarkable that although this man was present when the accident occurred he is wholly unable to tell where the boy was when it happened. Mr Nicol thinks that the boy could not have gone between the machine and the wall from the place where he worked, but this, I think, is not supported by the evidence. On these two points, therefore, I am of opinion that this machine ought to have been fenced, and that the pursuer, being under fourteen and engaged at the time in his ordinary occupation, has not liberated the defenders from their responsibility by taking that method of discharging his duty. It ought not to have been left open to him to do so. This being so, I am also of opinion that the responsibility of fencing the machine lay with the employer and not with any subordinate. The machine has been since fenced, and without giving undue weight to that circumstance I think it shews that it was possible to fence it. I have no doubt that the employers thought that the machine was safe enough, and that they did not anticipate the mode of working which the pursuer adopted. But they ought to have performed their statutory duty, and must be liable for the consequences of not having done so. Traills v. No. 145. Traills v. Small & Boase. LORD COWAN.-I have carefully considered the statutes upon which, along with the evidence, this case depends. I entirely agree with your Lordship. I July 4, 1873. would only observe that there is a peculiarity in this case which has a very important bearing upon the question now before us. It is that the part of the gearing which was unprotected was not a portion of the machinery generally near to which this boy had to be in passing to and fro in the mill, but a part of the very machine at which he was at work, and where his duty required him to be; so that, even on the defenders' view of the case, it was necessary that the boy should come in very close contact with the unprotected machinery. This is an important element in the case, and I think gives additional weight to the more general view of the evidence which brings it within the operation of the statute, and on which the decision depends. LORD BENHOLME.-This case mainly depends upon the words of the statute, and these words are so explicit that they do not allow us to take into consideration carelessness on the boy's part. Here the boy was, in the prosecution of his work, near the unprotected machinery, and the result was that he lost his arm. In these circumstances I think the statute requires us to give damages. LORD NEAVES Concurred. THE following interlocutor was pronounced :—“ Find that it has been established by the proof that the pursuer, Andrew Traill, while in the course of his ordinary occupation in the works of the defenders, was injured by coming in contact with a wheel, being part of the machine libelled, while the same was in motion: Find that the said machine and the machinery and gearing thereof were not securely fenced or protected: Find that the machine was so placed and used in the works of the defenders as that the minor pursuer, being under fourteen years of age, was liable to come into contact with the parts or gearing thereof in the course of his ordinary occupation: Find that it is not proved that the minor pursuer came into contact with the gearing in question through disobedience of orders: Find that the gearing of the machine in question had been securely fenced until a few months prior to the occurrence libelled, and that it has been since fenced: Find that, in terms of the statute 7 and 8 Viet. c. 15, sec. 21, and 19 and 20 Vict. c. 38, sec. 5, the defenders were bound to have securely fenced the said machine and gearing, and that they failed to do so, and are responsible for the injury thereby occasioned: Therefore recall the interlocutor complained of: Find the defenders liable to the pursuer in the sum of £150 of damages, and also in the expenses of medical attendance consequent on the said injury, and decern for payment thereof by the defenders to the pursuers, and find the defenders liable in expenses of process, and decern; and remit." ROBERT A. VEITCH, S.S.C.-JOHN GALLETLY, S.S.C.-Agents. No. 146. July 9, 1873. Irvine. The Rev. ALEXANDER IRVINE, of the First Part-Darling. Succession Testament-Conditio si sine liberis.—-A testator directed a share of the residue of his estate to be invested for behoof of A in liferent, and her children in fee; and, failing children, "to go to the survivors of my nephews and nieces, or the families of such as may have predeceased." A died without issue. Held that the word "families" included all descendants of nephews and nieces, and that the grandchildren of a nephew were entitled to succeed per No. 146. stirpes to the share which their predeceasing parents would have had. Irvine v. Opinion (per Lord Cowan) that the condition si sine liberis, when applicable, July 9, 1873. embraces all the descendants of the parties called to the succession towards Irvine. whom the testator stands in loco parentis. I. ALEXANDER IRVINE, merchant in Aberdeen, died on 19th December 2D DIVISION. 1849, leaving, inter alia, a testamentary writing, dated 8th October 1842, in which he made the following provision as to the residue of his estate:"Lastly, the whole free residue of my property I wish to be divided among my nephews and nieces, in proportion of one and a-half share to my nephew Thomas, and one share to any other nephews and nieces. The shares of my nephew, Thomas, and of my nieces, Margaret and Ann, to be invested by you in your names (if thought proper not to give the principal, but, if for their advantage, you can give them it as you please); but if not given, it will be for behoof of them, and their husbands in liferent, and children in fee, and to be declared alimentary, and not attachable for their debts or deeds in any way; and failing children, the shares of those deceasing to go to the survivors of my nephews and nieces, or the families of such as may have predeceased." By testamentary writing, dated 10th December 1844, Mr Irvine provided that in consequence of the death of one of his nephews "the share of my means which would have fallen to my nephew, had he survived me, shall now belong equally to his family." One of the testator's nieces, Mrs Margaret Irvine or Smith, died on 16th April 1872, a widow, without issue and intestate, and a question arose as to the division of her share of the residue in the following circumstances. The whole of the testator's nephews and nieces had predeceased Mrs Smith except one, the Rev. Alexander Irvine. James Irvine, one of the testator's nephews, had left five children. Of these, a son, John Irvine, alone survived Mrs Smith; of the remaining four children, two died unmarried, and two, Louisa and Alexander, left issue. The question was whether John Irvine was entitled to the whole share of residue payable to his father's family at Mrs Smith's death, or whether the children of Louisa and Alexander were entitled to the proportions of that share which would have been payable to Louisa and Alexander respectively, if they had survived Mrs Smith. A special case was therefore presentd for the opinion and judgment of the Court by the Rev. Alexander Irvine, the only surviving executor of Alexander Irvine, the testator, and the said John Irvine. The following questions in law were submitted to the Court:-“ (1) Whether the second party is entitled, as the sole survivor of James Irvine's family at the date of Mrs Smith's death, to receive the whole share payable to that family on Mrs Smith's death? or (2) Whether the first party hereto is bound to reserve out of the said share, for behoof of the children of the said deceased Louisa Irvine or Garrow, and of the child of the said deceased Alexander Irvine, the proportions thereof which would have been payable to the said Louisa Irvine or Garrow and Alexander Irvine respectively, if they had survived Mrs Smith?" Argued for the first party;-The word "families" in the testamentary writing is more flexible than children of predeceasers. But if the terms of the writing are not themselves sufficient to let these children take their parent's share the conditio si sine liberis applies, the testator having stood in loco parentis.2 1 M'Laren (Wills and Suc.), 726; Fyffe v. Fyffe, Jan. 13, 1841, 3 D. 1205. No. 146. Irvine v. Irvine. Argued for the second party;-(1) The ordinary and natural meaning of the word "family" is children. And the connection in which the July 9, 1873. word is used in other parts of his testamentary writings makes it clear that that was his meaning, for he provides that in consequence of one of his nephews having died his share is to go "equally to his family." Now, if grandchildren are included by the same word that is used to denote children they ought to claim per capita, which they are not doing. (2) The conditio si sine liberis does not apply, because the testator has himself contemplated the event of the institute dying before the period of division leaving issue, and has provided for it, and wherever that is the case the law does not add its implied substitution to the express substitution of the settlement. Here the testator has done precisely what the law would have done for him, and it is not bound to do anything more. Although a man may be technically in loco parentis to the remotest generations, the conjectura pietatis grows weaker as you descend in the scale of relationship.3 2 At advising,― LORD COWAN. This special case relates to the share of the deceased's estate effeiring to his niece, Margaret Irvine or Smith, appointed by his will to be invested by his executors for behoof of herself and husband in liferent, and of her children (if she had any) in fee; and failing children, the share is directed “to go to the survivors of my nephews and nieces, or the families of such as may have predeceased." It is admitted by the parties that the share did not vest in Margaret, and that, as she died a widow without children, the succession to it falls to be regulated by this clause. Only one of the nephews and nieces of the testator, the Rev. Alexander Irvine, survives, but there are families of predeceasing nephews and nieces; and as regards the immediate descendants of these parties it is not disputed that they are entitled to participate in Margaret's share along with the surviving nephew of the testator. But as regards the share payable to the family of the deceased James Irvine, one of the predeceasing nephews, it is to be decided whether his immediate descendants alone are to be preferred, or those more remote to be conjoined with them in the succession. These parties are (1) John Irvine, the second party hereto, the son of James, who alone survived Mrs Smith; and (2) the children of Louisa and Alexander, son and daughter of the said James Irvine, who predeceased Mrs Smith, the former leaving a family of four daughters, and the latter one child. It is to regulate the respective interests of these parties that the questions of law are presented for the opinion of the Court. The construction of the words of the deed, fixing the destination of the testator's residuary estate, seems to me to be attended with little or no difficulty. Margaret Irvine's share, as appointed by the deed, falls to be taken by surviving nephews and nieces, and (for the disjunctive "or" must plainly be read as conjunctive) by the families of predeceasing nephews or nieces per stirpes; and, as regards the family of James, the testator's nephew, who predeceased Mrs Smith, and whose share is in question, they take as his descendants that equal share which he would have taken had he survived. There is no room for holding that they take on any other footing than as in right of James. It is per stirpes not per capita that the succession is to be regulated. The family are to take the share, and I think it must necessarily be held that when immediate descendants fail, leaving issue, that issue takes their parent's place. The word "family" is of large significancy in a question of this kind, and includes all descendants, so that all may participate in the succession according to the order of law, children repre 1 Fyffe v. Fyffe, Jan. 13, 1841, 3 D. 1205. 2 Rhind's Trustees v. Leith and Others, Dec. 5, 1866, ante, vol. v. 104 (Lord Neaves' opinion, p. 111). 3 Sturrock v. Binny, Nov. 29, 1843, 6 D. 117. |