Death of William Hamilton, 1893

WEST CALDER MINING CASE.

Proof was led on Monday, 20th ult., before Sheriff-Substitute Melville, at Linlithgow, as to liability in an action by John Hamilton and his wife, residing at Mossend, West Calder, against the Hermand Oil Company (Limited), for £100 damages, in respect the death, upon 19th March, 1892, of their three-year-old boy, William Hamilton, which was caused by the boy's head coming into contact with the bell-crank of defenders' No. 1 Pit pumping gear.

The pursuer's plea is that the death of his child, William Hamilton, was occasioned through the fault of defenders in leaving inadequately fenced moving machinery belonging to them dangerous from its accessibility and ponderous character ; and defenders having let to the pursuer a dwelling house, and undertaken to supply to him water for household purposes, and having provided only such a means of drawing that water as endangered the lives of pursuers' children, and finally caused the death of said child, William Hamilton, pursuer was entitled to reparation from defender.

For the defenders it is contended that the pursuers' averments are unfounded in fact. The accident not having been caused by the fault of the defenders, but by the carelessness and negligence of pursuers themselves, and by Mary Hamilton, who at least by her fault materially contributed to said accident, defenders cannot be held liable. The pursuers were aware of the danger, and the said William Hamilton being a tresspasser on the defenders' property at the time of the accident, pursuers cannot recover damages; besides, the damages claimed are excessive.

James Gibb, (43), an engineer in Linlithgow, deponed that he had been an engineer in this country and abroad for the greater part of his life, and he was familiar with all sorts of machinery. On Friday last, he went to No. 1 pit at the Breich works of the defenders. When he was at the works, he saw two brick and slated cottages with offices on the north side of the road; at right angles to these there was an engine-house and another out-house. Leading front the engine-house, there was a crank from the engine and from that a connecting rod leading to the bell-crank that worked the pump and on the other side of that was a lever acting as a back balance to the pump. The back balance was on the north side. At right angles to the cottages, which he had mentioned, there were a series of wooden sheds; jutting out from the northmost of the sheds there was shaft, attached to the shaft was a revolving throw crank and a connecting rod reaching northwards.

The connecting rod had fastened to the far end of it a bell crank, which was so called, because the motion was something similar to the clapper of a bell. The bell crank did not revolve it was fastened at one end and simply oscillated. Looking northwards on the farthest away point of the crank and beyond the pump there was a balance beam. The pump was worked directly from the bell crank.

Q . - What you call the back balance is a mass of iron weighing three-quarters of a ton ?

A.—To begin with, it is a wooden beam, and there is a back balance weight at the end of it, and also one of these bell cranks to act as a weight at the furthest away end. The steam revolved the shaft and then the connecting rod pulled up the pump; the revolving of the crank worked it up and down. The object of the back balance was to assist the weight of the rods that go down, and generally to balance the weight of the bell crank and the rods that go into the pump. He found a fence from the shaft along to the northmost part. While in the east he learned photography, and at the request of pursuer's agent he took some photographs of those works which were then produced.

The crank shaft came out of the engine-house. The distance front the shaft to the back balance was a little over 40 feet. He found a piece of cloth nailed about 2 feet 6 inches to the north of the pump, and he was informed that that was the spot where the little boy was killed. There was a beam of 18 inches square resting upon the ground. Then they had the beam of the back balance which was 7 inches thicker, and which when the pump was in operation had a vertical play of 12 or 13 inches. The stroke of the crank at the shaft he measured to be 14 inches. It measured 1 foot or 1 foot 2 inches from the centre at the place where the shaft came out of the shed.

Q.—When the fence is in position how does it retain its hold of the remainder of the fence ?

A.—lt is fixed in with slots cut out in the other post, and there is a thumb-screw or hand-screw for turning on the gate. With your face directed towards it, upon your left hand you have the slots or sockets into which the gate is fitted, and when the thumb-screw is turned the gate is, in a manner, locked in. Everything connected with the fence is made of wood. He should say the width of the gate would be from 3 feet 9 inches to 4 feet. If the fence had been complete by the gate which he had referred to being in position this child could not have got killed there.

His evidence was that, looking to the height of the beam, and also to the height of the cross-bar of the gate, if the gate had been in its proper position the child could never have got in there.

Cross-examined.—He was a practical engineer and his experience as a practical engineer was general. He had never seen these works before inspecting them on Friday last. The pit was not working when he saw it. The gate which he had referred to was placed in position by means of little slots cut in the uprights, and if necessary the device which he had called a thumb-screw could be used in addition ; it had to be used before the gate was fast. As far as the support of the gate was concerned it was enough to place the gate into the little slots on each side, the effect of the thumb-screw being that you could not lift out the gate until the thumb screw was opened again. From what he saw he thought the fence with the gate in position was quite a sufficient fence for the purpose of preventing anybody getting near the pumping machinery, unless they wished actually to get through it. It was quite a temporary fence, however.

Mary Hamilton (16), daughter of pursuer, gave evidence, in which she stated that she was at present employed a domestic servant with Mr John Watt, Hartwood, but before going there she was always at home. She remembered the 19th March last year, the day when her brother William was killed. On that day her father came home from his work about two o'clock, and, after having something to eat, he and her mother west to West Calder, which is about three-quarters of a mile distant from their house. There were left in the house besides herself her brothers, John and William, and her sisters, Jeanie and Barbara, and a baby in arms, called Maggie.

After her parents went away, and while she was sitting in the house, she heard the pump of No. 1 Pit going. That pump was used for taking water out of the pit. She put the child into her brother John's arms, took a pitcher, and went down to the pit for some water. It was their regular custom to fill their pitchers by drawing it along the bottom of the trough and that was what he intended to do that day. She was never checked for doing that. When she went down to the pit she found that there was no water coming, and she cried out, "Jamie, there is no water coming." She was speaking to James Mackie the engine-keeper.

When she cried to Mackie she saw him putting on a fire in the boiler, and he left his fire and came round to her. Mackie said to her, "There will be something wrong with the buckets, I will go and put on a little more steam, and if that does not do it I will have to get men to sort it." He stepped over just about a footstep and looked down the pump. It was just about two or three feet over to where the water came gushing out of the spout of the pump, so that he was able to look down. She did not look down, and she did not go over to where Mackie was standing, she just looked over.

The gate was off at the time. By the gate she meant the part of the fence which was opposite the pump. She had not seen it that day before, but she had seen the gate off on other occasions when they were sorting the pit. As a rule the gate was on. When Mackie went round to his engine she left the pit with Willie. When she went down Willie was pushing the hutches upon an open space in front of their own house where there used to be a shale bing. When they went there to stay there was a large shale bing which remained for a long time, but it was afterwards cleared away, and some of the hutches which had been used were left along the side of the railway and on the open space which she had mentioned, and it was these hutches that her little brother was pushing.

The other children from the Rows used to push them also. Her father's house and that of another man named Jenkinson were side by side, and near to the works ; then more to the east there was Borthwick's house, and still further off there was a row of houses. There were two children in Borthwick's house, and these children and other children from Rosebery Terrace used to come and push the hutches about. She took little Willie by the hand and returned to the house, which was about 30 yards distant. She told Willie to go into the house, saying that she would be up just now, and she went away down the road for a pitcher of water. She took a pitcher and a bowl. The place where she went for the water the second time was to a drain pipe which came from Captain Steuart's fields, and ran into a pond lying to the north side of the road.

Somebody had broken the pipe, and they used to be able to scoop up the water with a bowl out of the pipe, and so fill their pitchers. In dry weather they could not get any water there. In order to get water for cooking and drinking purposes they had to go to Raeburn's Rows. She could not say the distance this would be off. They got the water for washing dishes and clothes and so-forth out of the spout at the pit. She would not be five minutes in filling her pitcher at the place, and she returned straight home, and went straight into the house.

She was going into an inner room when James Mackie came to the door and asked if her mother was in, to which she replied that she was not home from West Calder yet. Mackie then said: "Willie is killed," and she then went down to the pit with Mackie. She found Willie standing on his feet, with his head down upon the beam. He was quite dead, and his head was crushed in. The gate was off. Her brother John came down and carried up Willie to the house. There was only her brother John, James Mackie, and herself there at the time. Dick Allander came across the fence, and when he saw them taking Willie up to the house he went away to West Calder for her father. A boy, William Bishop, also appeared about that time, but these were all the people about. About the middle of the week following the accident she saw they were putting up some further fencing at the pit. They put up the fencing all round the place at the pump gear and beside it too. There was a lot of fencing put up. The gate opposite the spout was always on after that.

Cross-examined—She thought it would be about 3 o'clock when her father and mother went to West Calder on the day in question. It would be about half-past six o'clock when she went over to the pit to get the water. It was getting grey at the time. When her father and mother left that afternoon they left her in charge of the younger children. She did not think it was a right thing for Willie to play with the hutches, and her mother often gave him a whipping for doing that. That was one of the reasons why she called away from the hutches and took him in her own hand. She held his hand at the time she took him over. She generally went to that pump for water, and that was not a sort of thing she would have asked any of the younger children to do.

Q. — Do you think he could have seen down the pipe if he had just looked over the top of the gate?

A.—Yes, he could see down a good lump.

Q.—Do you remember Mackie saying anything like this—" Now take the boy away with you?"

A.—No; he never said that. She just took him by the hand and went away with him, right to the door of the house. She understood Willie would remain in the house till she came back with her water. She would not have thought it a right or a safe thing to have allowed him to go back to the pit or to look down the pipe of the pump as Mackie had done.

Re-examined—lt was the custom of Mrs Borthwick and the other women to draw water at the spout.

Defender's Counsel—She never knew of any children being checked by any people about the mine for going too near the pit mouth.

James Mackie (24), deponed he was an engine keeper, and lived at Mid Street, Mossend. He had been cited by both sides to attend there that day. He used to be an engine keeper at No. 1, of the Breich Works of defenders, and he was in that position for nearly two years before the 19th March, 1893. He had been in the employment of the defenders previously, but went away ; and it was after he had returned that he was engineman for two years. Mrs Jenkinson, and the women from Rosebery Terrace, were in the habit of getting water where they were pumping it. Seeing that it was dry weather they got it occasionally, and of course it was the only place unless they carried it for some distance. They got drinking water at Raeburn Rows or down at the farm.

On the 19th March, 1892, he was in charge of his engine as usual at No. 1 Pit. His neighbour, James Clarkson, was off on the Saturday, and it was witness's turn on. He could not exactly say where Clarkson was. Witness went on duty on the Friday morning at 7 o'clock, and in the ordinary course his shift should have ended at 5 o'clock that night, but as Clarkson did not turn up at 5 o'clock, witness worked on till 7 o'clock the next morning ; and then from 7 o'clock till 5 o'clock again, and he was running his fourth shift when Willie Hamilton got killed. Mary Hamilton came for water to the spout while the pump was going, and she cried out to him" Jamie, there is no water coming." He crossed by the pit head, went round to the pump, and looked down. The gate was off. There was no water coming as there was something wrong with the pump. Witness then described the working of the pump. After he left the girl and her brother he went away round to his engine. The girl took the boy away, and when witness returned to the pump be found the little boy dead. He was in a leaning position, leaning on the pump. His feet were just on the ground. On his left hand there was the spout quite near to him, and behind him the trough. He went and told his sister Mary what had happened.

Q.—There is no window shown in the photograph?

A.—There is a leg-up to the frame there which be thought hid the window. When he was inside his engine-house it used to be a matter of anxiety to him that there was no protection for anybody to prevent them going against the tumbling crank. There were two barrels with rails on the top put up there by some of the underground managers, and he expected that was for the purpose of protection. He thought that was sufficient to keep people back from the tumbling crank.

Q.—lf it was sufficient, why were you anxious about anybody going down to the pit at night ?

A.—There was just the one rail on the top of the barrels, and anybody going stammering forward in the dark might go through below the rail, and if they had done that and the tumbling crank had come against them, he expected that it would have been sudden death. After the little boy Hamilton was killed a proper fence was put up.

Cross-examined.—He was no longer in the employment of the company. He did not tell the manager anything about them standing extra shifts for each other. They used to stand for each other regularly by arrangement between each other. It would be about five minutes before the accident happened that he took off the gate. He took off the gate to see why there was no water coming. He thought there was a "geg " in the clack. He could not have satisfactorily ascertained this without taking off the gate and looking down. If he had looked over the gate he could not have seen down the pipes. He was occasionally troubled with children running about near the pithead and he had checked them for doing so. He had seen his companions check them. They did not approve of women bringing their children for water. He had told William Hamilton to run away when he was too near the machinery. When he heard Mary Hamilton calling to him that there was no water, he went round and saw that she had her little brother with her.

Witness looked down the pump and said he would put on some more steam, and when he went away to do so, the girl went away and when witness returned again the boy was dead. When the girl went away witness told her to take the boy with her and she went away holding the boy in her hand. When witness went away to put on more steam he left the gate open.

John Hamilton, junior, also gave evidence.

J. Hamilton, senior, (pursuer) in his evidence said that on the evening of 19th March, 1893, it would be about 7 o'clock when he and his wife got home from West Calder and found Willie dead. He had noticed Willie when he went away and he was then in full vigour and health. He was a very smart boy. Witness received a great shock when he heard of his death, and he had never been quite the same man since. The funeral expenses amounted to £11 12s, and at the request of Mr Lind, he gave in a note of these to the office, but defenders had never paid them or given him anything. Evidence was also given by Mrs Margaret Beattie or Hamilton, wife of pursuer, Mrs Elizabeth Pagin or Murray, Mrs Helen Boyle or Curran, Wm. Bishop, and Richard Allander. This closed the proof for pursuers. James Alexander Tweedie, (for defenders) deponed that he was a mining engineer in practice in Edinburgh.

He knew about No. 1 pit, at which the accident in question happened, as it was sunk when he was going about the place. He had often had occasion to inspect it, and in point of fact he had periodically inspected it since the year 1878. He was assistant engineer to the late John Williamson, who was engineer to Lord Rosebery, and also for the Company at that time. Witness acquired Mr Williamson's business at his death. He recently visited the place, and prepared No. 3 of process, which was a plan showing the position of pursuers' house from the main road, and of the engine-house and pit. Throughout his inspections of the pit he had never had occasion to make any complaint regarding the general arrangement, of it or in it. On behalf of the proprietor his inspection was particular and critical with regard to the arrangements of the pit, because he acted in the double capacity, and he had to be a little more careful than he would otherwise have been if he had only been acting for the Company. The pumping arrangements, as shown on the plan, were such as were common, sufficient, and thoroughly capable for their work.

Referring to the date of accident on 19th March, 1892, there was no ring fence round the whole works and there never was such a fence round about any pit. If there was a ring fence round the houses and pit the pit could not be worked at all. The height of the gate was 3 feet 3 inches. It was a lifting gate, and was placed in position by slipping the bars into the slots cut in upright beams standing above the pit-head. When placed into these slots the gate was securely in position. There was also what had been called a thumb-screw—a small piece of wood which you could turn down so as to check it, as it were. As the fence stood at the time of the accident it was, he thought, sufficient to keep people away. It would not have been impossible for the engineer to examine the pipe of the pump in order to see what was the matter with it without taking off the gate, unless he ran the great danger of killing himself by falling down the pit through hanging over to look down.

Q.— Would it be quite in accordance with practice, and what is considered proper at a place like this if the pump being off the fang the engineman took off the gate, went away to his engine house to turn on more steam, and come back again in the course of a minute or two, leaving the gate off ?

A.—lt is the regular way to do that work. I would not expect the man to put the gate in position every minute he happened to be away. I know many pits in Scotland where miners' houses are as near the pit mouth as in this case, and some very much nearer.

Q- In this instance there seems to be some thirty-two yards according to your measurements from the pit mouth to the houses. Can you give me instances in which you have seen the same thing?

A —Yes. There is the case of Lumphinnans Colliery, one of the largest in Fifeshire, and Muiravonside, one of the largest in Stirlingshire, and I can give other instances if required.

Cross-examined - He was not interested in the defenders' Company.

Q.—ls there a window or aperture on the east side of the engine sheds through which a person could look and see what was going on?

A.—There is a window to the north looking to the pit. There was an opening to the east also, but that had been closed up, and I consider it perfectly justifiable to do so. I cannot tell when that opening was closed. I would not be positive that it was open at Martinmas 1892.

Q.—Assuming that there is no aperture there and that the thing which you call a bush and which weighs about 2 cwts. is revolving at a rapid rate, is that a safe thing

A.—Decidedly ; it is the common practice in the country.

Q.—Supposing that it had come in contact with Mr Tweedie, would it not have been sudden death?

A.—Well, I have come in contact with them pretty often, and I have never yet met with an accident._ Re-examined—The first time he saw the new piece of fencing from A to C on the photograph was on the occasion of his last inspection for the purpose of making the plan No. 3. At all his previous inspections the fencing between A and B was standing. Mr Harry Armour was next examined for defenders. He was at one time manager of the Hermand Oil Coy., but was no longer connected with the Company in any capacity. He ceased to be manager about the end of May, 1892, but he was manager at the date of the accident. He was familiar with the circumstances and situation of the pit in question and of the pursuer's house. Pit No. 1 was stopped about the middle of May, and after that date they had no need for the services of pursuer, and he did not work to them afterwards. He remained in occupation of his house until about September last. He had seen the plan prepared by Mr Tweedie, and so far as he could see it was a correct plan.

There were lots of pits in Scotland where the miners' houses were quite as near the pit month as pursuer's house was in this case. He could instance pits at Slamannan and the Hamilton district. The fencing at the pit in question was just such as was usual and considered sufficient in all pits. He could not say how long the fencing had been up before the accident, but it had been up for a considerable time. If he had known that the engineman was working four shifts in succession that would not have been allowed by the pit authorities. It was the engineman's duty to report that to him (witness), but it was not reported and he never heard of it until to-day. Witness thought the fencing, as it stood at the time of the accident, was sufficient and safe. Provided the gate was on, it would have effectually prevented any one from getting in to the pit or the pump shaft unless by getting over the top. It was a right thing for the engineman to take off the gate to look down the pipe, and it was there to be taken off in such emergencies.

Q.—Suppose that after having done that he went away to his engine house to put on more steam, was it necessary for him to replace the gate during the moment or two he was away ?

A.—He did not need to replace the gate seeing that he was working about the place. Children were not allowed to go poking about any of our pit heads, and I told the men to prevent that as far as they could.

Cross-examined—He approved of Mackie's action in leaving the sate off when he went to turn on the steam. He was defenders' manager at the time.

Q.—And had you been there you would have adopted his action?

A.—Certainly, if I was working about the pipes. Wm. Lind was mining manager under him. The defenders had three pits and a mine besides the retort works. Witness looked at No. 1 Pit every morning.

Q.—Do you know that prior to the 19th March, 1892, the fencing was defective? A.—No, it was not. Q.—Was there any fencing opposite what the last witness called the bush, that is to say the crank or shaft coining out of the shed?

A.—l believe the fence did not quite extend to that, but although the tumbling crank was not fenced it was elevated above the ground. Speaking front recollection of a year ago, I would say that the centre of the crank will be about 5 or 6 feet high.

Q.—ls it not just about 4 feet? A.—lf you tell me that you have measured it and found that it is only 4 feet, I will accept that, but I am quite certain it is 5 feet high. The crank will weigh about 6 cwts. Such a crank in motion would certainly deal a deadly blow to any one who pat their head under it. Referred to the Mines Regulation Act (Section 49, Rule 21).

Q. —Do you think that not to have it fenced is consistent with the Section of the Act to which you are now referred? (This question was objected to.)

A.—Yes ; because it was high above the ground. It was 5 feet above the ground, and nobody could stumble against that. If you deliberately put your head under it, it would have been your own fault. The turning crank was 40 feet away from the bell crank, and had nothing to do with the accident in question. It was the motive power moving the mechanism at the place where the child was killed. Supposing you were to stand outside the gate and lean over you could not safely look down the tube of the pump.

Q.—How do you account for the child being killed standing on the ground and leaning over?

A.—The child went in when the gate was open, and looked down, and his head was caught between the permanent log of wood and the bell crank coming down. There were two bell cranks, and it was the bell crank to the right and further away still from the turning crank which struck the child. Witness was not aware that there used to be a filtering arrangement for providing the people of Rosebery Terrace with pure water. There was a tank at Rosebery Terrace, but there was no pump.

Q.—What is the use of a tank without a pump?

A – I daresay you are right; there is a sort of street well, but not exactly a pump. The tank was never in use in witness's time. At one time it had been in use but it never worked. The water oxidised and got quite red. He knew that from people who had told him. Witness knew that the women drew water at No. 1 pit, but he never gave them sanction to do it. There was no doubt water was scarce in the district; and though they never had any sanction, if they wanted water for washing they could get it at the pit. There was a place about 100 yards further down where there was always water to be got for washing purposes. That was in the engine pond.

Q. — A dirty pond?

A.—lt was the same water as was pumped out of the pit.

Re-examined— He had no recollection of the additional fencing being put up.

Q.— Can you say that it was not put up during our time?

A.—lt might and it might not. It is a year ago since I was there; but I knew there was a fence there.

With regard to the cottages, the tenants had no right of occupation of the ground between their houses and the pit, that ground being used for pit purposes such as binging and so on. The proof was then closed, and parties agents were heard on proof and whole case on Wednesday, the 15th March, when the Sheriff Substitute took the case to avizandum, and has now issued the following interlocutor : Linlithgow, 17th March, 1892.

The Sheriff-Substitute having considered the cause : Finds that on 19th March, 1892, the pursuer's son, Wm. Hamilton, five years of age, went to the defender's pit at Easter Breich, that when looking down the shaft, his head was crushed by the beam of the pumping machinery and he was killed. That the defenders ought to have had that machinery fenced and are liable in damages to the pursuers for the death of their child. Assesses the damages at the sum of £100 and decerns against the defenders in favour of the pursuers for that sum accordingly. Finds the defenders liable to the pursuers in the expenses of processes. Allows an account thereof to be given in and remits the same when lodged to the auditor for taxation and report.

(Signed), G. F. MELVILLE.

Note.—lt was natural that a child should wander from its residence about 30 yards, and when he got to the pit look down to see if any water was coming. The defenders were bound to foresee ouch a likely occurrence, and to provide against it. They might have done so by fencing the whole shaft so as to prevent a child coming near the pit. The provision they had made was to provide a gate at the opening of the shaft, and if this had been in position the child could not have put his head in danger ; but the engineman, Mackie, had removed the gate and the defenders are responsible for his act. The amount of damages asked and given does not appear to the Sheriff-Substitute excessive. The father and mother have suffered from so sudden a calamity, and the father states that he has never been able to do his work as well since the accident. The amount actually paid for the funeral of the child was £11 13s. (Intd.) G. F. M. Agent for Pursuer—Mr Jas. F. M'Donald, S.S.C., Linlithgow. Agents for Defender—Mr E. Peterkin, Solicitor, Linlithgow, Local Agent; and Mr J. A. Clyde, Advocate, Edinburgh, instructed by Drummond & Reid, W.S., Edinburgh.

West Lothian Courier, 25th March 1893