Skerritt v Scallan

• Jurisdiction: Ireland
• Judgment Date: 10 June 1877
• Date: 10 June 1877
• Court: Exchequer (Ireland)

Exchequer.

SKERRITT

and

SCALLAN.

Wigmore v. JayENR 5 Ex. 354.

Murphy v. PollockUNK 15 Ir. C. L. R. 224.

Swift v. MackenUNK Ir. R. 8 C. L. 140.

Priestley v. FowlerENR 3 M. & W. 1.

Potts v. PlunkettUNK 9 Ir. C. L. R. 290.

Seymour v. Maddox 16 Q. B. 326.

Hutchinson v. The York, Newcastle, and Berwick Railway CompanyENR 5 Ex. 343.

Wiggett v. FoxENR 11 Ex. 832.

Waller v. The South Eastern Railway CompanyENR 2 H. & C. 102.

Wilson v. Merry L. R. 1 Sc. App. 326.

Paterson v. WallaceUNK 1 Macq. 748.

Feltham v. EnglandELR L. R. 2 Q. B. 33.

Whelan v. The Cork Steam Boat CompanyUNKIR I. R. 8 C. L. 383.

M'Kinney v. The Irish North Western Railway CompanyUNKIR I. R. 2 C. L. 600.

Paterson v. WallaceUNK 1 Macq. 748.

M'Kinney v. The Irish North Western Railway CompanyUNKIR I. R. 2 C. L. 600.

Murphy v. PollockUNK 15 Ir. C. L. R. 224.

Tarrant v. WebbENR 18 C. B. 797.

Wilson v. Merry L. R. 1 Sc. App. 326.

Murphy v. PollockUNK 15 Ir. C. L. R. 230.

Hutchison v. The York, Newcastle, and Berwick Railway CompanyENR 5 Ex. 343.

Conway v. The Belfast and Northern Counties Railway Company Ante, 345.

Paterson v. WallaceUNK 1 Macq. 748.

Feltham v. EnglandELR L. R. 2 Q. B. 33.

Negligence Master adn servant Fellow-servant's competence Ignorance of master.

-the term) of preventing his estate being affected by the user Exchequer. during the term. The statute gives to the absence of resistance 1877 . by the reversioner within three years from the expiration of the BEGGAN term the same effect which juries previously attributed to his McDON. ALD. acquiescence. For these reasons, although with the hesitation necessarily caused by differing from my brothers FITZGERALD and DEASY, I am of opinion that the right of way binds the fee of the servient tenement until resistance by the reversioner within three years from the determination of the lease, and that the verdict for the Defendant on the plea relying on a user for forty years should stand. Entertaining, as I do, this view, I have thought it unnecessary to advert to the questions raised upon the pleadings. In my view they do not arise. I may, however, add that I agree with my brother FITZGERALD that a replication was necessary. Order absolute as to the issue on the plea relying on a twenty years' user; order discharged as to the issue on the plea relying on a forty years' user; general verdict for the Defendant; both parties to abide their own costs of the argument. Attorney for the Plaintiff : B. Keys. Attorney for the Defendants : G. Knight. SKERRITT v. SCALLIN. Negligence -Master and servant-Fellow-servant's competence-Ignorance of master. In an action by a workman against his employer for negligence in the conÂÂstruction of scaffolding, the insecurity of which it was alleged was known to the Defendant but not to the Plaintiff, the Defendant simply traversed negligence; it appeared that the scaffolding was made by a fellow-workman also in the employment of the Defendant; the jury having found, (1) that the scaffolding was not constructed of unsound materials supplied by the Defendant, and that he did not know that the materials were unsound; (2) that the scaffolding was insecurely constructed, but that the Defendant did not know it, and that the Exchequer.; 1877. May 2, 3. Tune 10. THE IRISH REPORTS. [I. ; Plaintiff did know it ; (3) that the fellow-workman was incompetent to make the scaffolding, but that the Defendant was not aware of his incompetence ; the Judge, upon these findings, directed a verdict for the Defendant :-Held (DEAsy, B., diss.), (1) that the verdict so directed could not be upheld, inasmuch as the question whether the Plaintiff knew that the scaffolding was insecure was not put in issue by the mere traverse of negligence ; (2) that the verdict should be set aside for misdirection and a new trial awarded, upon the ground that the question whether the Defendant had used due care in the selection of the fellow-workman had not been submitted to the jury. Per PALLES, C. B.-When it is shown that a servant is incompetent, and that through his incompetency injury results to his fellow-servant, the mere fact of his incompetency throws the onus on the master of showing that he exercised due and reasonable care in selecting him. Absence of knowledge of the fellow-servant's incompetency is not, per se, an answer to the action, the master's true obligation being to use due care in selecting the servant. ACTION for negligence, tried before DEASY, B., at the Sittings after Michaelmas Term, 1876. The Plaintiff complained, in the first count, that he was emÂÂployed as a slator to do work for the Defendant upon scaffolding constructed of materials supplied by the Defendant, and which the Defendant knew was unsafe to be worked on unless the materials supplied for its construction were sound and proper for that purÂÂpose, and that the Defendant negligently supplied for its construcÂÂtion materials which were not sound, suitable, and proper for the purpose, without the Plaintiff having knowledge of the unsoundness, &c., thereof, or the danger, &c., of working on the scaffold, and by: reason whereof, whilst the Plaintiff was doing the work upon the scaffolding it gave way, and thereby the Plaintiff was thrown to-the ground, &c. : the second count was similar, averring that the Plaintiff was ignorant that the scaffolding was unsafely and inÂÂsecurely constructed. The Defendant pleaded several pleas, including a traverse of the negligence, but did not traverse the Plaintiff's ignorance of the unsafe condition of the scaffold, nor plead contributory negligence, nor that the accident was occasioned by the negligence of a fellow-servant. The Defendant employed one Scanlan, a bricklayer, to do reÂÂpairs for him on his house, giving him liberty to employ what hands he chose; Scanlan afterwards employed the Plaintiff, a VoL. XI.] COMMON LAW SERIES. 391 slator, to work on the house, and. he and Scanlan went to the house , together, and found there two cripples and cripple-irons, which they put up as a scaffold, the Plaintiff assisting Scanlan in their erection ; these cripples were made by Scanlan for the Defendant, who paid him for making them ; the Plaintiff then worked on the roof and afterwards on the scaffold, and while working on it the cripple on which the Plaintiff was gave way, and he fell to the ground, and was seriously injured by the fall. For the Plaintiff it was proved that the cripples used were imÂÂproper and. insecure. For the Defendant it was shown that the cripples were got and made by Scanlan for the Defendant, who paid for them ; and. Scanlan deposed that he made them securely, and had often made similar cripples before ; that he had never used those cripples preÂÂviously, but had since the accident ; and that the Plaintiff, in assisting to put up the cripples, nailed a short piece of timber into the cross-pieces, which caused the scaffold to fall. The Defendant also deposed that he did not interfere in getting the materials for the scaffolding or cripples, or in their construction ; that the mateÂÂrials never were his, and that he never employed the Plaintiff. The 'counsel for the Plaintiff asked the learned Judge to leave to the jury the question-" Whether the Defendant ought to have known that Scanlan was incompetent to make the cripples, or whether he knew, or ought to have known, that the scaffolding was .constructed defectively and improperly, and was unsafe ? And also to tell them that the Defendant's knowledge was not necessary." The learned Judge declined to accede to this requisition ; and the jury, in answer to questions submitted to them, found:-(1) that the Defendant employed the Plaintiff; (2) that the cripples were not constructed of unsound materials...