Scottish Court of Session Decisions

This was an action at the instance of Mrs Maxwell, 57 Belville Street, Greenock, against the Caledonian Railway Company, concluding for payment of £50 as damages in respect of her alleged illegal seizure and detention by one of the servants of the company.

The pursuer averred that on 2nd September 1897 she bought at Greenock a return ticket between Greenock and Gourock, but travelled only to Fort Matilda, half-way between these two stations, and gave up the outward half of the ticket, and that the next day, wishing to return from Fort Matilda to Greenock, she tendered the return half of the ticket, whereupon the ticket—collector refused to take it, and charged her with attempting to defraud the company.

The pursuer averred further—“(Cond. 4) The pursuer again tendered the said ticket to the defenders' said servant, and explained the circumstances to him under which she did so, and she was prepared to give him her name and address, but he refused to accept the ticket, to take explanation, nor did he ask her name and address. She had the means, and was also willing, to pay the defenders the fare over again if he insisted upon it. Notwithstanding these facts, the said officer of the defenders, acting as their agent and with their authority, then wrongfully and illegally seized and detained the pursuer, although she had committed no offence, as a person committing an offence against the provisions of the Railway Company Clauses Act 1845 and the Regulation of Railways Act 1889. (Cond. 5) Further, in so seizing and detaining the pursuer, the defenders' said officer used unnecessary force and violence towards her. Without the least necessity therefor he pulled and dragged the pursuer from the platform of the said station, upon which she had emerged from the train, over the bridge, crossing to the north platform thereof.”

She stated that in the course of the seizure and detention she had received serious injuries.

The defenders maintained that the collector was entitled to detain the pursuer in respect of her not having paid her fare, and attempting to travel without doing so. They averred that no violence had been used by the collector, and that if he had used it, it was not in the scope of his employment to do so.

The Sheriff-Substitute ( Begg) and the Sheriff ( Cheyne) having allowed the parties a proof, the pursuer appealed to the Court of Session for a jury trial, and proposed the following issues—“Whether, on or about 3rd September 1897, and in or near the station of Fort Matilda, the defenders' servant Christopher Bailiff wrongfully seized and detained the pursuer as a person committing an offence against the provisions of the Railway Company Clauses Act 1845, and the Regulation of Railways Act 1889, to the loss, injury, and damage of the pursuer? Whether, on or about said date, and in or near said station, the defenders' said servant seized and detained the pursuer with unnecessary force and violence, to the loss, injury, and damage of the pursuer? Damages laid at £50.”

The parties agreed to amend the first issue by adding the words “and illegally” after the Word “wrongfully.”

With regard to the second issue, the defenders submitted that there was no precedent for granting such an issue. It referred to the same act as that dealt with by the first issue, which was ex hypothesi a legal act, and the whole substance of the case could be tried under the first. In any case the issue should be modified in the lines of the issue approved in the case of Lundie v. MacBrayne, July 20, 1894, 21 R. 1085.