and walls of the interior of a building, where the painting and whitewashing is a portion of the work necessary to finish the building.27 On the ground that the building in question came within the descriptive words, "being constructed by a scaffolding," recovery has been allowed in a case where, at the time of the accident, the component parts of the scaffolding were lying on the ground ready for use, but the scaffolding itself had not been erected,28 and where the building itself had been completed, but the scaffolding was still standing.29 So recovery was allowed where an employee of a plumbing contractor was sent to measure up the plumbing after that work had been com 27 Reddy v. Broderick [1901] 2 I. R. (Ir.) 328. Whitewashing work being done upon a school building more than 30 feet high, by means of a scaffolding, when a workman employed upon the work was killed owing to the collapse of the scaffolding, is repair work. Dredge v. Conway [1901] 2 K. B. (Eng.) 42, 84 L. T. N. S. 345, 70 L. J. Q. B. N. S. 494, 49 Week. Rep. 518, 17 Times L. R. 355. The court stated that the effect of the decision in Hoddinott v. Newton [1901] A. C. (Eng.) 49, 84 L. T. N. S. 1, 70 L. J. Q. B. N. S. 150, 49 Week. Rep. 380, 17 Times L. R. 134, supra, was to overrule the earlier ruling (Wood v. Walsh [1899] 1 Q. B. (Eng.) 1009, 80 L. T. N. S. 345, 68 L. J. Q. B. N. S. 492, 63 J. P. 212, 47 Week. Rep. 504, 15 Times L. R. 279) that the ordinary outside painting of a building is not "repair" within the meaning of the act. Decorating a church by means of stencils is "repairing," where the stenciling was a part of the general scheme for restoring the church. Hardy v. Moss (1904; C. C.) 116 L. T. Jo. (Eng.) 201, 6 W. C. C. 68. 28 Halstead v. Thomson (1901) 3 Sc. Sess. Cas. 5th series (Scot.) 668. The special consideration on which the court relied was that "the scaffolding was regularly used from time to time by all the tradesmen engaged in the work during the construction of the building, both prior and subsequently to the accident." 29 A builder erected a scaffolding for the purpose of raising building materials from a lower level to the higher level on which the building which he was constructing stood. After the building was complete, and while it was in actual use, a workman was injured as he was removing gear from his scaffolding. Held, that the workman was employed on a building which was "being constructed" by means of a scaffolding. Frid v. Fenton (1900) 82 L. T. N. S. (Eng.) 193, 69 L. J. Q. B. N. S. 437, 16 Times L. R. 267. So, in McCabe v. Jopling [1904] 1 K. B. (Eng.) 222, 73 L. J. K. B. N. S. 129, 89 L. T. N. S. 624, 20 Times L. R. 119, 52 | pleted, although the building was still being constructed "by means of a scaffold." 30 4. What is a "scaffolding." It is now definitely settled that the word "scaffolding" is not restricted to those permanent external structures to which the word is most commonly applied, but also embraces an internal staging, arranged by means of planks and trestles and without poles.31 Whether a mere temporary staging of this kind is a scaffolding is a mixed question of law and fact. When the facts are ascertained it is a question of law, upon which a court of review is not only entitled, but bound, to express an opinion.32 Week. Rep. 358, 68 J. P. 121, it was held that a work of repair was not completed until the scaffolding was removed, and that an employee engaged in the work of removing the scaffold was within the purview of the statute. 30 Plant v. Wright [1905] 1 K. B. (Eng.) 353, 74 L. J. K. B. N. S. 331, 53 Week. Rep. 358, 92 L. T. N. S. 720, 21 Times L. R. 217. 31 Hoddinott v. Newton [1901] A. C. (Eng.) 49, 84 L. T. N. S. 1, 70 L. J. Q. B. N. S. 150, 49 Week. Rep. 380, 17 Times L. R. 134, reversing [1899] 1 Q. B. 1018, 68 L. J. Q. B. N. S. 495, 47 Week. Rep. 499, 80 L. T. N. S. 558, 15 Times L. R. 299. 32 Hoddinott v. Newton [1901] A. C. (Eng.) 49, 84 L. T. N. S. 1, 70 L. J. Q. B. N. S. 150, 49 Week. Rep. 380, 17 Times L. R. 134, per Lord Macnaghten. A new house more than 30 feet high had been roofed in, and workmen employed by the builder were plastering the walls and ceilings inside the house, for which purpose trestles and boards were being used. One of the men, while standing on the floor of the top landing plastering the wall, fell down the well of the staircase, there being no railing, and was killed. At that time other workmen were at work plastering some of the rooms, and were standing on boards placed across trestles 4 feet high, in order to enable them to reach the ceilings and upper part of the walls. It was held that there was evidence to justify a finding of the county judge that such arrangement of trestles and boards was a "scaffolding.” Maude v. Brook [1900] 1 Q. B. (Eng.) 575, 69 L. J. Q. B. N. S. 322, 64 J. P. 181, 48 Week. Rep. 290, 82 L. T. N. S. 39, 16 Times L. R. 164. Collins, L. J., dissented, being of opinion that the word "scaffolding" ought to be construed in its ordinary popular meaning, taken in connection with its context, and that it meant some structure of planks and supports capable of being used for the construction or repair of a building over 30 feet in height. A new house more than 30 feet high had been roofed in and the external scaffolding removed. The applicant was engaged in A finding that a "crawling board" used in the repair of a roof was scaffolding was held not to be improper.36 It is not necessary that the scaffold shall be put up by the undertaker; it is 1 K. B. (Eng.) 232, 73 L. J. K. B. N. S. 71, 68 J. P. 122, 52 Week. Rep. 374. The cases dealing with the question | tion of fact, and ordinarily the finding whether a ladder is a "scaffolding" with- of the arbitrator will not be disturbed.34 in the meaning of the act are conflict- So the court of appeal refused to dising. In some cases it has been held to turb a finding that painters' steps came be a conclusion of law that a ladder used within the terms of the act.35 in the ordinary way is not embraced in the word "scaffolding." 33 But what appears to have become the settled rule is that whether a ladder is a scaffolding within the meaning of the act is a quesplastering the walls and ceiling in one of the rooms, and in order to reach his work was standing on a structure of trestles, with boards on them. While at work in this manner he met with an accident, for which he claimed compensation. An arbitrator appointed by a county court judge decided that the structure was not a scaffolding, and refused to make an award of compensation, but referred the matter to the court judge, who reversed the decision of the arbitrator and awarded the compensation provisionally settled by the arbitrator. On appeal it was held that the question whether the structure was a scaffolding or not was a question for the arbitrator, and that his finding was not open to review. Ferguson v. Green [1901] 1 K. B. (Eng.) 25, 70 L. J. K. B. N. S. 21, 64 J. P. 819, 49 Week. Rep. 105, 83 L. T. N. S. 461, 17 Times L. R. 41. The word "scaffolding" includes an internal staging formed by planks resting on the step of a ladder and upon one of the roof principals in the center of a room. Reddy v. Broderick [1901] 2 I. R. (Ir.) 328. Planks over a sunken bed 6 feet deep and used to wheel barrows upon is a scaffolding. McGregor v. Wright (1901; C. C.) 3 W. C. C. (Eng.) 121. Two pairs of trestles with planks resting on them do not constitute a scaffolding Stack v. Counsell Bros. (1899; C. C.) 106 L. T. Jo. (Eng.) 342, 1 W. C. C. 133. 33 Wood v. Walsh [1899] 1 Q. B. (Eng.) 1009, 68 L. J. Q. B. N. S. 492, 63 J. P. 212, 47 Week. Rep. 504, 80 L. T. N. S. 345, 15 Times L. R. 279; M'Donald v. Hobbs (1899) 2 Sc. Sess. Cas. 5th series, 3, 37 Scot. L. R. 4, 7 Scot. L. T. 157, 36 Scot. L. R. 393; Campbell v. Sellars (1903) 5 Sc. Sess. Cas. 5th series, 900, 40 Scot. L. R. 643, 11 Scot. L. T. 89 (no evidence that ladder was used other than in the ordinary way). 34 Veazey v. Chattle [1902] 1 K. B. (Eng.) 494, Collins, M. R., remarked: "A ladder might be at any rate I cannot say that it could not be a scaffolding; and it would make no difference whether it were high above ground on the roof of a house, or whether it were resting on the ground." In one case the finding of the county court judge that a ladder used in whitewashing by placing it against the building, and the workmen sitting or standing on the rungs, was not a scaffolding, was held binding on the court of appeal. Crowther v. West Riding Window Cleaning Co. [1904] In another the court of appeal refused to disturb a finding to the effect that a ladder placed so that one end rested on the ground and the other against the parapet of a house was not a "scaffolding." Marshall v. Rudeforth [1902] 2 K. B. (Eng.) 175, 71 L. J. K. B. N. S. 781, 66 J. P. 627, 50 Week. Rep. 596, 86 L. T. N. S. 752, 18 Times L. R. 649. On the other hand, in O'Brien v. Dob. bie [1905] 1 K. B. (Eng.) 346, the finding that a ladder upon which a workman was standing to do some work was a scaffolding was upheld. Mathew, L. J., said: "It [the ladder] was put to answer the purposes that might be secured by a scaffolding, because the workmen did not have recourse to it merely to pass up and down; but it was put there, and intended to be used there, and was used there, as a support for the workman at a certain height from the ground to enable him to do part of the work that he had to do. Under those cir cumstances it seems to me that there is nothing in the cases that have been decided which precludes us from taking the view arbitrator that this structure was not 35 Elvin v. Woodward [1903] 1 K. B. (Eng.) 838, 72 L. J. K. B. N. S. 468, 67 J. P. 413, 51 Week. Rep. 518, 88 L. T. N. S. 671, 19 Times L. R. 410. 36 Veazey v. Chattle [1902] 1 K. B. (Eng.) 494, 71 L. J. K. B. N. S. 252, 66 J. P. 389, 50 Week. Rep. 263, 85 L. T. N. S. 574, 18 Times L. R. 99 (Stirling, L. J., dissenting). The crawling board, a contrivance ordinarily used in the repair of roofs, consisting of a wooden plank about 18 to 20 feet long and 10 inches wide, across which were nailed transverse pieces of wood to give support to the man while working upon it; on the under side at one end was fastened a cross piece of wood, which fitted over the ridge of the roof and kept the board in position. At the time of the accident the workman was on the roof fixing the crawling board, while the lower end of the board was being steadied by an assistant standing on the ladder. sufficient that the building is being constructed by means of a scaffold.37 The result of the decisions as a whole is manifestly to bring within the purview of the act some classes of structures which are assuredly not scaffolds in the sense in which that term is ordinarily employed when it is applied to a contrivance for facilitating the erection of a building. The result of the decisions in volves the curious result that a workman who, when working in a house exceeding 30 feet in height, falls from a low temporary platform erected in a room where the floor is completely finished, where he is in no greater danger than if he were on a similar platform in a completed house, may recover compensation, while, on the other hand, no compensation is recoverable by a servant who, while working on a house less than 30 feet in height, falls from a platform resting on the ground, which subjects him to a much greater danger. It would not seem to be improbable, to say the least, that the legislature really intended to confine the statutory right of compensation to cases in which the cause of the accident is the scaffolding, which is of such a height and such a construction that the workmen on it are exposed to the danger of falling 30 feet or more. As appears from the text of the compensation act of 1897, set out above, the provisions of the factory act from 1878 the former act; but as these acts are of -1891 were practically incorporated in considerable length and include many provisions not relevant to the act under discussion, it has been deemed wise not to include the text of these acts. The descriptive terms used therein to define a factory, which have been construed in connection with the awarding of compensation, are sufficiently set out in the titles to the following subdivision. of the employer, and not one belonging The factory in question is the factory to a third person to which the workman has been sent to do some work for his employer.41 2. “Premises wherein steam, water, or other mechanical power is used in aid of the manufacturing process." words it has been held that a yard in With reference to these descriptive which stones are dressed by manual labor, e. Meaning of "railroad." and in which there is an engine house in which the workmen's tools are sharpPrivate railways, not being "used for ened, is a "nontextile factory; " 42 an empurposes of public traffic," are not cov-ployee engaged in repairing a hydraulic ered by the compensation act, although they may be connected with a public railway. 38 A tramway laid along a public road is a "railroad." 39 The word "railroad" is used in the 37 Fletcher v. Hawley (1905) 21 Times L. R. (Eng.) 191. lift is within the act, although the "machinery driven by steam, water, or other mechanical power" is the lift itself.43 But a gas main used to supply gas to the consumers is not a part of a factory. And the preliminary washing that, where a workman was accidentally injured in the course of his employment on the construction of a signal box on a new line of railway, his employment was on, in, or about a work of construction of a "railroad." 41 Francis v. Turner Bros. [1900] 1 Q. B. (Eng.) 478, 69 L. J. Q. B. N. S. 182, 81 L. T. N. S. 770, 48 Week. Rep. 228, 64 J. P. 53, 16 Times L. R. 105, 2 W. C. C. 61; Wrigley v. Whittaker [1902] A. C. (Eng.) 299, 71 38 The word "railway" is not applicable to a siding in a dockyard, constructed merely as an adjunct to the ordinary business of the proprietors of the dockyard. London & I. Docks Co. v. Midland R. Co. 18 Times L. R. (Eng.) 171, 71 L. J. K. B. N. S. 153, 86 L. T. N. S. 29, reversed in [1902] 1 K. B. 568, 18 Times L. R. 325, 71 L. J. K. B. N. S. 369, 50 Week. Rep. 461, 86 L. T. N. S. 339. Nor to a private siding belong-L. J. K. B. N. S. 600, 86 L. T. N. S. 775, ing to a trading company which does business with the railway company. Brodie v. North British R. Co. (1900) 3 Sc. Sess. Cas. 5th series, 75, 38 Scot. L. R. 38, 8 Scot. L. T. 248. 39 Fletcher v. London United Tramways [1902] 2 K. B. (Eng.) 269, 71 L. J. K. B. N. S. 653, 66 J. P. 596, 50 Week. Rep. 597, 86 L. T. N. S. 700, 18 Times L. R. 639. 40 Fullick v. Evans (1901) 84 L. T. N. S. (Eng.) 413, 17 Times L. R. 346, holding 18 Times L. R. 559, 50 Week. Rep. 656, 66 J. P. 420, 4 W. C. C. 93. See also the cases cited post, 209. 42 Weir v. Petrie (1900) 2 Sc. Sess. Cas. 5th series, 1041, 37 Scot. L. R. 795, 8 Scot. L. T. 75. 43 Tullock v. Waygood [1906] 2 K. B. (Eng.) 261, 75 L. J. K. B. N. S. 557, 95 L. T. N. S. 223. 44 Spacey v. Dowlais Gas & Coke Co. [1905] 2 K. B. (Eng.) 879, 22 Times L. R. of bottles by. a rotary brush driven by a small gas engine is not a process used "in aid of" the bottling, and consequently that a place where such work is carried on is not within the purview of the act.45 Nor can the expressions in question be so construed as to bring within the category of "factories" a threshing machine and traction engine, which, at the time of the accident, were in transit to a place where they were to be used for threshing, the engine being connected with the machine for no purpose but that of haulage. 46 A theater in which hydraulic machinery is used to raise and lower a portion of the stage is not a factory, since the mechanical power is not used in the aid of a manufacturing process.47 Steam power being used to cut hay and straw is not used in the aid of any manufacturing process. 48 Horse power is not a mechanical power within the meaning of the statute; 49 nor is hand power, so that premises in which such power is used are not for that reason alone a factory.5 50 Blocks and a 29, 75 L. J. K. B. N. S. 5, 54 Week. Rep. 138, 93 L. T. N. S. 685, 8 W. C. C. 29. Romer, M. R., said: "The business of the gas company included both the manufacture and the supply of gas, and no doubt gas mains are practically a necessity for the business of supplying gas to consumers; but the use of mains for delivering the gas does not make them part of the place where the gas is manufactured." 45 Law v. Graham [1901] 2 K. B. (Eng.) 327 (decided with reference to the definition in § 93 of the repealed factory and workshop act 1878). In the course of the opinion it was said: "I am of opinion that, having regard to the earlier part of § 93, and to the provisions with respect to manufacturing processes, and to the 4th schedule, the washing of the bottles by mechanical means cannot be fairly called a process which is used in aid of' the bottling of the beer. It is true that the bottles must be clean, and the respondents wash them because they are going to put beer into them; but, in my opinion, that operation is not 'in aid of' in the sense in which those words are used in the section. Therefore, though the case is near the line, I think the justices were right. With regard to Weir v. Petrie (Scot.) supra, I do not wish to be thought to dissent from that decision, because there, in a sense, the actual condition of the tools might have a great deal to do with the dressing of the stone for sale. Whether or not I should have decided the case the same way I need not now consider; but I do not, in what I have said, intend to dissent from the decision, because I think manual labor is exercised by way of trade or for purposes of gain." With reference to these words as used in the clause in which a "nontextile factory" is defined, it has been held that this term is applicable to the refuse despatch works of a city, where the salable parts of the city refuse are separated from the unsalable part by processes in which steam power is used,55 and to a a distinction may be drawn between it and the case now before us." 46 George v. Macdonald (1901) 4 Sc. Sess. Cas. 5th series, 190, 39 Scot. L. R. 136, 9 Scot. L. T. 267. 47 Burnett v. Drury Lane Theatre (1902) 4 W. C. C. (Eng.) 56. 48 Employment on a chaff cutting machine which was run by a steam engine and let out to farmers is not within the act, since such a machine is not a factory, nor is the operation of it an engineering work. Watkinson v. Crouch (1899; C. C.) 107 L. T. Jo. (Eng.) 328, 1 W. C. C. 137. 49 Bolt v. Heywood (1903; C. C.) 114 L. T. Jo. (Eng.) 294, 5 W. C. C. 151. 50 Willmott v. Paton [1902] 1 K. B. (Eng.) 237, 71 L. J. K. B. N. S. 1, 66 J. P. 18 Times L. R. 48, 4 W. C. C. 65. 197, 50 Week. Rep. 148, 85 L. T. N. S. 569, 51 Putting a fly wheel onto an engine by means of blocks and a winch operated by hand power does not fall within the statute. Wrigley v. Bagley [1901] 1 Q. B. (Eng.) 780, 70 L. J. K. B. N. S. 538, 84 L. T. N. S. 415, 3 W. C. C. 61, 49 Week. Rep. 472, 65 J. P. 372. 52 The lowering of pipes into a trench by means of a pulley is not work in which "mechanical power is used." Bennett v. Aird (1899; C. C.) 107 L. T. Jo. (Eng.) 550, 1 W. C. C. 138. 53 Ferguson v. Barclay (1902) 5 Sc. Sess. Cas. 5th series, 105, 40 Scot. L. R. 58, 10 Scot. L. T. 350. 54 Johnson v. London General Omnibus Co. (1905; C. C.) 7 W. C. C. (Eng.) 83. 55 Henderson v. Glasgow (1900) 2 Sc. Sess. Cas. 5th series, 127, 37 Scot. L. R. 857, 8 Scot. L. T. 118. tripe manufactory where steam is used was pulled down into the necks of the to force water into a boiler, and then to bottles.60 heat the water.56 The term "gain" means direct gain, so that a workman who was employed by a farmer on his farm to drive a movable steam engine, for the purpose of working a mill for grinding meal intended to be used for food for stock on the farm, and not for sale, is not employed on, in, or about a "factory." 57 It was also said in the same case that farming was not a trade. A laundry which is part of the equipment of a hotel, in which is laundered the hotel linen, the clothing of the employees, as a part of their compensation, and also such clothing as the guests might desire, which was paid for by the guests, has been held not to be operated for "purposes of gain." 58 6. "Shipbuilding yards." The fact that repairs are being done in a ship in a dock does not make the dock for that reason a "shipbuilding yard;" therefore the dock was deemed not to be a factory for the purposes of the compensation.61 7. "Bottle washing works," These descriptive words do not apply where the bottle washing is merely ancillary to the main business that is carried on, 61a nor where mechanical power of some kind is not used.62 8. Electrical stations for lighting any "street, public place," etc. A workhouse which has an engine A shed attached to hotel stables in house and machinery used for the purwhich a chaff cutter was located for cut-pose of generating electricity for lightting feed for the owner's and travelers' ing purposes is a public place within horses is not a factory as the work was schedule 6, part 1, clause 20, and is therenot carried on for direct gain.59 fore a nontextile factory within the 5. Premises in which “manual labor is meaning of § 149, subsec. 1, of the facexercised in adapting an article for tory and workshop act 1901.0 sale." These descriptive words were in one case held to be applicable to premises where beer was charged by mechanical power with gas, and then allowed to flow into bottles under the pressure of the gas through a tap, the nozzle of which 56 Doswell v. Cowell (1906) 95 L. T. N. S. (Eng.) 38, 22 Times L. R. 628, 8 W. C. C. 33. 57 Nash v. Hollinshead [1901] 1 K. B. (Eng.) 700, 70 L. J. K. B. N. S. 571, 75 J. P. 357, 49 Week. Rep. 424, 84 L. T. N. S. 483, 17 Times L. R. 352. 58 Caledonian R. Co. v. Paterson (1898) 1 Sc. Sess. Cas. 5th series, 26, 36 Scot. L. R. 60, 6 Scot L. T. 194, 2 Adam, 620. 59 Bolt v. Heywood (1909) 114 L. T. Jo. (Eng.) 294, 5 W. C. C. 151. 60 Hoare v. Truman (1902) 71 L. J. K. B. N. S. (Eng.) 380, 86 L. T. N. S. 417, 50 Week. Rep. 396, 66 J. P. 342, 4 W. C. C. 58 (factory act 1878). 61 Spencer v. Livett [1900] 1 Q. B. (Eng.) 498, 69 L. J. Q. B. N. S. 338, 64 J. P. 196, 48 Week. Rep. 323, 82 L. T. N. S. 75, 16 Times L. R. 179, 2 W. C. C. 112. 61a The wine cellars of a hotel, in which there are two small revolving brushes, worked, when desired, by water power from a tap, for washing the interior of the bottles, the cellars being primarily used for storage, and the processes of corking and bottle washing being merely ancillary to that object, are not a "bottle-washing work," and therefore not а factory. Kavanagh v. Caledonian R. Co. (1903) 5 A stoker and assistant engineer in the electrical station of a training vessel moored in the river Thames, and used for training for sea service pauper boys under the charge of the metropolitan parishes and unions, is within the act, since the vessel is a "factory" and the employers were undertakers.64 Sc. Sess. Cas. 5th series, 1128, 40 Scot. L. R. 812, 11 Scot. L. T. 281. The court said: "The legislature did not include every place in which bottles are washed, but only places where either the sole or principal business carried on is bottle washing." 62 A claim for compensation under the workmen's compensation act 1897, by a spirit salesman against a spirit merchant, which set forth that the claimant received the injuries on account of which he claimed while engaged in the respondent's service, washing bottles in a store which "is used for the purpose of bottling beer and washing beer bottles, and is a factory within the meaning of the workmen's compensation act 1897," is irrelevant, in respect that it did not set forth that steam, water, or other mechanical power was used in the respondent's store. Campbell v. M'Nee (1903) 5 Sc. Sess. Cas. 5th series, 1151, 11 Scot. L. T. 277, 40 Scot. L. R. 824. 63 Mile End Guardians v. Hoare [1903] 2 K. B. (Eng.) 483, 72 L. J. K. B. N. S. 651, 67 J. P. 395, 89 L. T. N. S. 276, 19 Times L. R. 606, 20 Cox, C. C. 536, 5 W. C. C. 100. 64 Benson v. Metropolitan Asylums Board (1908) 124 L. T. Jo. 403. |