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3H.&C.595.

SCOTT V. LONDON AND ST. KATHERINE DOCKS CO.

665

mine in proper order for mining operations. On the contrary, it appears by the evidence
that the mine had been worked in the ordinary course for the last six years. In
taking coal from the bed, the roof would necessarily from time to time require propping
and the injury was caused by the underlooker delaying for one day to prop phe roof
after he was informed by the plaintiff that the stone was dangerous.
We have come to the conclusion that the underlooker, whose duty it was to prop
up the roof of the mine, and the [595] plaintiff were fellow labourers; so that the
case falls within the principle established not only in this country, but also in Scotland,
Ireland and America, that a servant, when he engages to serve a master, undertakes
as between himself and his master to run all the ordinary risks of the service, including
negligence on the part of a fellow servant, when he is acting in the discharge of his
duty as servant of him who is the common master of both. The cases on the subject
are collected with skill and clearness in Smith's Law of Master and Servant (page 144,
2nd ed.). When it can be properly predicated that there is the exact relation of
fellow labourers is a question of great nicety and difficulty. My brother Williams
brought the idea into prominent relief by saying that at times a fellow labourer should
be considered as standing in the position of a deputy master, and that if there was
negligence on his part whilst in that position the real master would be responsible.
That question, however, does not arise in this case. We think that the plaintiff and
the underlooker were fellow labourers, and that the latter was not in the position of
a deputy master for whose negligence the mine owners are responsible.
We are therefore of opinion that the direction of my brother Blackburn was right,
and the judgment of the Court below must be affirmed.
Judgment affirmed.(b)
[596]

IN THE EXCHEQUER CHAMBER.

(Appeal from the Court of Exchequer.)


Feb. 7, 1 8 6 5 .
Held, in the Exchequer Chamber, that in an action for personal injury caused
by the alleged negligence of the defendant, the plaintiff must adduce reasonable
evidence of negligence to warrant the Judge in leaving the case to the j u r y .
But where the thing is shewn to be under the management of the defendant or
his servants, and the accident is such as in the ordinary course of things does
not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident
arose from want of care.In an action against a dock Company for injury to the
plaintiff by their alleged negligence the plaintiff proved that he was an officer of
the Customs, and that, whilst in the discharge of his duty he was passing in
front of a warehouse in the dock, six bags of sugar fell upon him. Held, reasonable evidence of negligence to be left to the j u r y : per Crompton, J., Byles, J.,
Blackburn, J., and Keating, J. Dissentientibus Erie, C. J., and Mellor, J.

SCOTT V. T H E LONDON AND ST. KATHERTNE DOCKS COMPANY.

[S. C. 34 L. J. Ex. 220; 11 Jur. (N. S.) 204; 13 W. R 410; 13 L. T. 148. Distinguished, Higgs v. Maynard, 1866, 1 H. & R. 581. Followed, Briggs v. Oliver,
1866, 4 H. & C. 403. Adopted,.Smith v. Great Eastern Railway, 1866, L. R. 2 C. P. 11.
Distinguished, Moffatt v. Bateman, 1869, L. R. 3 P. C. 115; 6 Moore, P. C. (N. S.)
369; Bridges v. North London Railway, 1871, L. R. 6 Q. B. 3 9 1 : reversed 1874,
L. R. 7 H. L. 2 1 3 ; Manzoni v. Douglas, 1880, 6 Q. B. D. 151; Crisp v. Thomas,
1890, 63 L. T. 811. Referred to, Travers v. Cooper, [1914] 1 K. B. 78.]
This was an appeal against the decision of the Court of Exchequer in making
absolute a rule to set aside the verdict for the defendants and for a new trial.(a)
The declaration stated that the defendants were possessed of a warehouse, and of
(b) See Brown v. The Accrington Cotton Spinning and Manufacturing Company
(Limited), ante, p. 511.
(a) Not reported, as no solemn judgment was pronounced, but only expressions
of opinion in which the Court differed; and the rule was made absolute in order that
the case might be taken to a Court of error.

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666

SCOTT V. LONDON AND ST. KATHERINE DOCKS CO.

a certain crane or machine for lowering goods therefrom, and at the time of the
grievances committed by them as hereinafter mentioned, they, by their servants, in
that behalf, were lowering by the said crane or machine from the said warehouse
certain bags of sugar on to the ground and stone pavement in the docks of the said
Company, and on and along which the plaintiff was then lawfully passing; and the
defendants, by their servants, so negligently, carelessly and improperly lowered tbe
said bags of sugar and conducted themselves in that behalf that the same came and
fell upon and against [597] the plaintiff: Whereby the plaintiff was greatly wounded,
bruised, hurt and permanently injured, &c.
Plea. Not guilty, and issue thereon.
At the trial, before Martin, B., at the London Sittings after Trinity Term, 1864.
the plaintiff deposed as follows : I am an officer of the Customs. I am an auxiliary
examiner. I superintend weighing goods. On the 19th of January I had performed
duty at the East Quay of the London Docks. I was directed to go from the East
Quay to the Spirit Quay by Mr. Lilley, the surveyor. I went to the Spirit Quay
in order to do duty. I proceeded on my way. There are warehouses on the Spirit
Quay. I went to the entrance of one of the warehouses, and could not find Mr. Lilley.
I was told he was in another warehouse. I was proceeding to where I was told he
was at the time of the accident. I proceeded to the first door I met upon the quay.
I went into the warehouse of which it was the door. I met a labouring man about
two yards within the warehouse. I asked him if Mr. Lilley was there. He said,
"No, sir; you will find him in the next doorway." In passing from one doorway
to the other I was felled to the ground by six bags of sugar falling upon me. (He
then described the injuries he received.) No one but myself was at the place. I had
no warning. There was no fence or barrier. No one called out. I heard the rattling
of a chain.
At the conclusion of the plaintiff's examination in chief the learned Judge expressed
his opinion that, even assuming that the bags of sugar were being dealt with by the
servants of the defendants in the course of their employment, and that the plaintiff
was lawfully passing through the Docks, there was not sufficient evidence of negligence
on the part of the defendants to entitle him to leave the case [598] to the j u r y ; and
his lordship then directed the jury to find a verdict for the defendants.
The Solicitor General, in the following Michaelmas Term, obtained a rule nisi
to set aside the verdict and for a new trial, on the ground that there was evidence
for the jury of negligence by the defendants' servants; which rule was made absolute
in the same term: whereupon the defendants brought this appeal.
Field (Murphy with him) argued for the defendants.(a) There was no evidence
of negligence which ought to have been submitted to the jury. 'This case is distinguishable from Byrne v. Boodle (2 H. & C. 722), because the place in which the
accident occurred was not, as there, a public highway, but a dock the property of
a Company, and the public had no right to walk in front of tbe warehouses. If,
upon the evidence, the facts are as consistent with the absence of negligence as with
negligence, there is no evidence for the jury. So, if the facts are consistent with
contributory negligence on the part of the plaintiff, there is no evidence for the jury.
It inconsistent with the evidence that the bags of sugar were being lowered in the
usual course, and that the plaintiff did not take proper care in passing from one warehouse to the other. [Crompton, J. There could be no contributory negligence
unless there was negligence on the part of the defendants.] Where it is a perfectly
even balance upon the evidence whether the injury complained of has resulted from
the want of proper care on the one side or on the other, the party who founds his
claim upon the imputation of negligence fails to establish his case: per Erie, C. J.,
in Cotton v. Wood (8 C. B. N. S. 568, 571). [599] A scintilla of evidence, or a mere
surmise that there may have been negligence on the part of the defendants, will not
justify a Judge in leaving the case to the j u r y : Toomey v. The London, Brighton and
South Coast Railway Company (3 C. B. N. S. 146, 150). That doctrine was acted upon
in Hammack v. White (11 C. B. N. S. 588). There Erie, J., in the course of the argument said : " I do not assent to the doctrine that mere proof of the accident throws upon
the defendants the burthen of shewing the real cause of the injury. All the cases where
(a) Before Erie, C. J., Crompton, J., Byles, J., Blackburn, J., Keating, J., and
Mellor, J.

HeinOnline -'- 159 Eng. Rep. 666 1220-1865

3H&C. 600.

SCOTT V. LONDON AND ST. KATHERINE DOCKS CO.

667

the happening of an accident has been held to be prima facie evidence of negligence have
been cases of contract." [Blackburn, J. The question depends on the nature and
character of the accident. If a ship goes down in the sea that is equally as consistent
with care as with negligence; but if a ship goes down in a dock, is not the fact of the
accident prima facie evidence of negligence?] There was no evidence of want of
reasonable care. The fact of lowering the bags is quite as consistent with care as
with the absence of it. [Crompton, J. It is stated that the bags fell upon the
plaintiff; then how could they have been lowered in the ordinary course?] The
accident may be accounted for in many ways consistent with the absence of negligence.
If a custom house officer, in the performance of his duty, boarded a ship and fell
down an open hatchway, the fact of the accident would be no evidence of negligence.
The doctrine laid down in Cotton v. Wood (8 C. B. N. S. 568) was affirmed in Cooke
v. Waring (2 H. & C. 332). In Cornman v. The Eastern Counties Railway Company
(4 H. & N. 781) Bramwell, B., considered it an ingredient in a case of negligence, that
the mischief which happened was one which could have been foreseen. Wilkinson v.
Fairrie (1 H. & C. 633) is an authority that it was [600] the plaintiff's duty to take
care of his own safety. [Blackburn, J. There is an old pleading rule, that less
particularity is required when the facts lie more in the knowledge of the opposite
party than of the party pleading. Applying that here, is not the fact of the accident
sufficient evidence to call upon the defendants to prove that there was no negligence 1]
The defendants had a right to use their warehouse in the way they did, and there
was no obligation or duty on their part to put up any fence or barrier, or warn the
public of danger. The plaintiff was in the position of a person who had a mere license
to enter the Docks, and he was not obliged to go the way he did : Bolch v. Smith
(7 H. & N. 736). He also referred to Gallagher v. Piper (16 C. B. N. S. 669).
The Solicitor General (T. Jones with him), for the plaintiff. It is conceded that
where the evidence is as equally consistent with due care as with negligence, there
is no case for the jury. It is also conceded that it is not enough to shew a mere
scintilla of evidence. No rule can be laid down that the mere fact of an accident is
evidence of negligence; for each case must depend on its own circumstances. In
determining what evidence a plaintiff must give, regard must be had to what a person
in his position may be reasonably expected to give. Assuming that there was negligence on the part of the defendants in hiring incompetent servants, what more evidence
could the plaintiff have given unless he called adverse witnesses to prove facts
peculiarly within the knowledge of the defendants'? In Christie v. Griggs (2 Camp.
79) Sir James Mansfield ruled that the mere fact of a coach having broken down was
prima facie evidence of negligence. In Skinner v. The London, Brighton and South Coast
Railway Company (5 Exch. 787) this Court [601] held that a collision between two
trains on a railway was prima facie evidence of negligence. The true test is, whether
the case is more consistent with negligence than care. Looking at the simple fact
that the bags of sugar fell violently upon the plaintiff, this case is more consistent
with negligence than care.
Field was not called upon to reply.
ERLE, C. J.
The majority of the Court have come to the following c o n c l u s i o n s :
There must be reasonable evidence of negligence.
But where the thing is shewn to be under the management of the defendant or
his servants, and the accident is such as in the ordinary course of things does not
happen if those who have the management use proper care, it affords reasonable
evidence, in the absence of explanation by the defendants, that the accident arose
from want of care.
We all assent to the principles laid down in the cases cited for the defendants;
but the judgment turns on the construction to be put on the Judge's notes. As my
brother Mellor and myself read them we cannot find that reasonable evidence of
negligence which has been apparent to the rest of the Court.
The judgment of the Court below must be affirmed, and the case must go down to
a new trial, when the effect of the evidence will in all probability be more correctly
ascertained.
Judgment affirmed.

HeinOnline -- 159 Eng. Rep. 667 1220-1865

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