Scottish Court of Session Decisions

Mrs Mary M'Cafferty or Higgins raised an action in the Sheriff Court at Glasgow against the Corporation of the City of Glasgow, acting under the Glasgow Police Acts 1866 to 1900, in which she craved decree for £250 as damages for personal injuries sustained by her.

The pursuer averred that at the date of the accident after mentioned, and for about three months prior thereto, she had been tenant of the house situated at 31 Society Street, Camlachie, Glasgow, and that the defenders were responsible for the upkeep of that street. “(Cond. 2) Immediately opposite the door of pursuer's said house, which is on the ground flat and on the west side of the street, there is a pavement about 3 1 2; feet wide with a kerbstone at the edge thereof. At the side of the kerbstone there is an iron grating placed almost opposite the said door, in the water-channel of the street. The grating is 1 foot 4 inches long and 1 foot broad. (Cond. 3) At time of the accident after mentioned, and, as the pursuer has since ascertained, for at least four weeks previous thereto, the said iron grating, which should be flush with the street, was sunk about 4 inches below the level of the street, thus leaving a hole of these dimensions. The grating was consequently in a defective condition, and was dangerous to the pursuer and other pedestrians who had occasion to use said street. (Cond. 4) On or about 3rd November 1900, between 9·30 and 10 o'clock in the evening, the pursuer was out shopping. When returning home she required to cross the said street from the east to the west side, and when so crossing to go to her house she placed her foot in the said grating, with the result that she stumbled and fell heavily to the ground and broke her left leg. (Cond. 5) At the time of said accident it was dark, and there is no artificial light nearer to said grating than about 20 yards. Said street is not well lit, and there was no light at the said grating to warn pedestrians of its dangerous condition. (Cond. 6) Shortly after the date of the said accident the defenders caused the said grating to be raised to the level of said street, and so to be rendered safe. (Cond. 9) The accident to the pursuer was due to the fault of the defenders in permitting the grating aforesaid to fall into and remain for a period of at least four weeks in a defective and dangerous state. Looking to its condition, the street was not in a reasonably safe condition for the use of pedestrians, particularly after nightfall. It is the duty of the defenders to keep the street and all parts of it in a proper state of repair, and to that end to examine its condition, or at anyrate to have it examined from time to time. Ordinary inspection would have revealed to the defenders that the condition of the said grating constituted a danger to the public. The defenders, however, failed to examine the grating or to have it examined, or in any event they failed to remedy its condition, with the result that the pursuer was injured as aforesaid.”

The pursuer pleaded, inter alia—“(1) The pursuer having suffered loss, injury, and damage through the fault of the defenders, is entitled to reparation therefor with expenses.”

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

On 8th February 1901 the Sheriff-Substitute ( Balfour) before answer allowed parties a proof of their averments.

The pursuer appealed for jury trial.

Argued for the defenders—The action was irrelevant. The gutter was a place that was always more or less depressed below the level of the street. The pursuer should have stepped over more carefully. In the most favourable view of the case for her, she was at least guilty of contributory negligence— Driscoll v. Partick Burgh Commissioners, January 10, 1900, 2 F. 368, 37 S.L.R. 274.

Argued for the pursuer—The case was relevant. The gutter was out of repair, and had been so for a month before the accident. The defenders had therefore ample time to see the defect in their ordinary inspection of the public street. The pursuer had not been guilty of contributory negligence. She was entitled to take it for granted that the defenders had performed their duty. Besides, there was no light to show the dangerous condition of the grating, and it was absurd to contend that it was the duty of foot-passengers to strike matches in order to find their way about the public streets of Glasgow.