Scottish Court of Session Decisions

Andrew Horsburgh, carter, Dundee, raised an action in the Sheriff Court at Dundee against Robert Sheach junior, builder and contractor, Dundee, in which he craved decree for £200 as damages for the loss of his son William, aged seven years.

The pursuer averred—“(Cond. 2) In or about the month of March last the defender was engaged in making extensions to the works of Messrs A. B. Crichton … Company in Cunningham Street, Dundee, and in making these extensions he had to make use of considerable quantities of sand coping-stone, &c. (Cond. 3) Cunningham Street is bounded on one side by a millpond belonging to Messrs Malcolm, Ogilvie, … Company, and between the said pond and the street there is a stone-wall of 8 feet or thereby in height. (Cond. 4) While engaged in the work condescended upon the defender or his servants deposited a large

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quantity of coping, sand, gravel, &c., close to the said wall, and at the date of the accident after mentioned the heap of coping, &c., had been accumulated to such an extent that its top was within 30 inches or so off the top of the wall. (Cond. 5) On or about the 15th day of March last the pursuer's eldest son William (aged seven years) was playing along with other children on top of the said heap of coping, &c., when he fell over the wall on to a ledge surrounding the pond, and from there fell into the pond itself, which is 10 feet deep, and was drowned. (Cond. 6) The wall situated between the pond and Cunningham Street already mentioned is so situated for the purpose of protecting persons using said street against the dangers of an unfenced pond, and in heaping up said sand, coping, &c., almost to the top of the wall, the defender or his servants, for whom he is responsible, practically did away with the effect of the wall, and rendered the pond an open and unprotected source of danger to the public. (Cond. 7) The children living in the vicinity of Cunningham Street were in the habit of playing upon the top of the said heap of coping, &c., yet although the defender or his servants were aware of this they took no steps to prevent the children from falling over into the pond, and this it was their duty to have done, either by removing the heap altogether, by erecting some fence or other protection between it and the pond, or by having some-one stationed to keep the children away from the pond. (Cond. 8) In erecting the said heap of coping, &c., and in failing to remove it or to take precautions for the safety of the children playing about it, the defender or his servants acted with gross and culpable negligence, and with a careless disregard for the safety of their fellow—beings, through which the pursuer's son lost his life, and for which the defender is responsible.”

The defender pleaded, inter alia—“(1) The action is irrelevant.”

On 4th July 1900 the Sheriff-Substitute ( Campbell Smith) repelled the defender's first plea-in-law, and allowed both parties a proof of their respective averments so far as not admitted and to the pursuer a conjunct probation.

The pursuer appealed for jury trial.

The defender took advantage of the appeal, and argued—The action was irrelevant. The top of the heap of sand was, on pursuer's own showing, 2 1 2 feet from the top of the wall. The child could therefore not have fallen over the wall unless he had climbed on to the top of the wall. The death of the child was therefore not due to the fault of the defender, even if the pursuer's averments were accepted as correct— Ross v. Keith, Nov. 9, 1888, 16 R. 86; Thomson v. Lanarkshire and Dumbartonshire Railway Company, July 3, 1897, 24 R. 1025.

Argued for the pursuer—The action was relevant. The child in the present case was only seven years old, and was thus incapable of taking care of himself—Opinion of

Lord Justice-Clerk Moncreiff in Forbes v. Aberdeen Harbour Commissioners, Jan. 24, 1888, 15 R. 325. To pile a heap of sand up against a wall was a direct invitation to children to climb up on the top of the heap. If the heap had not been there the pursuer's son would not have fallen into the pond, and the defender was responsible and in fault for turning the street into a dangerous locality for children— Findlay v. Angus, Jan. 14, 1887, 14 R. 312; Cormack v. School Board of Wick, June 21, 1889, 16 R. 812; Gibson v. Glasgow Police Commissioners, March 3, 1893, 20 R. 466.