Scottish Court of Session Decisions

William M'Lelland, miner, Blantyre, as tutor and administrator-at-law of Catherine M'Lelland, his pupil daughter, brought an action in the Sheriff Court at Hamilton against James Johnstone, contractor, Bellshill, in which he craved decree for £100 in name of damages.

The pursuer averred that the defender, while constructing a sewer along the public road from Blantyre to Cambuslang, had recklessly and carelessly placed a brazier containing burning coal on the footpath of said road at a considerable distance from where his men were working; that the brazier was not fenced in any way or guarded by a watchman; and that the pursuer's child, the said Catherine M'Lelland, five years of age, while walking past the brazier sustained severe injuries through her clothing becoming ignited by the flames which were issuing from the brazier.

The defender, in answer, averred that the brazier was placed on the footpath on a space which was blocked on one side by the heaping up of excavations from the sewer and on the other by a watchman's box, and that it was out of the track of passengers; that it contained only coke, which gave out no flame; and that it required no fencing or further supervision than that given by his workmen, who were working about 50 yards away.

The pursuer pleaded—“(1) The injuries to the pursuer's pupil child having been caused through the fault or negligence of the defender or of those for whom he is responsible, the defender is liable in damages.”

The defender pleaded—“(2) The said Catherine M'Lelland not having been injured through any fault of the defender or the fault of anyone for whom he is responsible, the defender is entitled to be assoilzied.”

He also pleaded—(3) Contributory negligence on the part of the child, and (4) gross negligence on the part of its parents.

Proof was allowed and led.

The following facts were proved:—The brazier, which was in use in connection with the defender's work on the pipes underneath the public road, abovementioned, was

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placed on the footpath at a point between 50 and 100 yards from where the defender's men were working. On one side of the brazier the footpath was blocked by the material excavated from the sewer and on the other by a watchman's box, but the approach to the brazier from the road was open. It was not fenced, and it was not constantly watched by anyone in the defender's employment. The fuel used in the brazier was coke, which became red hot but gave out little or no flame. It was further proved that such braziers as the one in question are in common use in connection with such operations, and that it was not usual even in towns to fence them in any special manner or to provide a watchman.

As to the circumstances attending the accident, two witnesses deponed that they had passed the child walking along the road nearly opposite the brazier, and that after they had gone some 30 yards further they heard her screams, and on turning back found that her clothing was on fire. No one actually saw the accident occur. The brazier was about 100 yards from M'Lelland's house.

On 4th March 1901 the Sheriff-Substitute ( Davidson) pronounced the following interlocutor:—“Having heard parties' procurators and made avizandum, Finds that on 20th October 1900 the pupil daughter of the pursuer, aged five years, was seriously burned by igniting her clothes and hair at a brazier, the property of the defender, which was stationed on the footpath of the public road between Blantyre and Cambuslang; that the said brazier was in use in connection with the defender's work on the pipes underneath the said road; that it was not fenced, nor was it constantly watched by any one in defender's employment; that the use of a brazier in such a way is usual and customary: Finds that the defender was not negligent in the manner in which he employed the said brazier, therefore assoilzies him from the conclusions of the action: Finds the pursuer liable to the defender in expenses: Allows an account, &c.

“ Note.—From the evidence I am satisfied that the child must have gone up to the brazier and stooped over it. In no other way could the brazier be said to be a danderous article, and although it is, of course, impossible to hold a child of five guilty of contributory negligence, I do not see that the defender neglected any reasonable precaution. No grown-up person would have burned himself at the brazier. It appears to me that an article which does not constitute a danger in any reasonable sense is not one which, if a child goes and practically invites danger from it, will render its possessor liable in damages. He had to exercise considerable care, but that being done his responsibility ends.”

The pursuer appealed to the Sheriff ( Berry), who on 10th June 1901 adhered to the interlocutor of the Sheriff-Substitute.

Note.—“This case has in my opinion been properly dismissed by the Sheriff-Substitute. Looking to the evidence of custom in regard to the use of braziers on public roads and streets in the course of operations such as those in which the defender was engaged, I cannot say that the evidence shows that there was on his part such fault or culpable negligence as to justify a conclusion of damages against him. The unfortunate accident to the child must have arisen from her going too close to the red-hot brazier; in other words, it was due entirely to her own fault. The suggestion made by one of the witnesses that a plank might have been put in front of the brazier so as to serve as a warning to children of the existence of danger I can but regard as futile. If the child was not warned by the appearance of a red hot brazier containing burning coke, it would probably not have been warned by the laying of a plank before it.”

The pursuer appealed to the Court of Session, and argued—The evidence showed that the defender had been guilty of negligence. The law was that no one was entitled to put anything in a public place which might be dangerous to those resorting thither without taking sufficient means to protect the public from injury, and special care was required to prevent danger to young children— Campbell v. Ord and Maddison, November 5, 1873, 1 R. 149, 11 S.L.R. 54; M'Grigor v. Ross and Marshall, March 2, 1883, 10 R. 725, 20 S.L.R. 462; Morran v. Waddell, October 24, 1883, 11 R. 44, 21 S.L.R. 28; Findlay v. Angus, January 14, 1887, 14 R. 312, 24 S.L.R. 237; Ross v. Keith, November 9, 1888, 16 R. 86, 26 S.L.R. 55; Gibson v. Glasgow Police Commissioners, March 3, 1893, 20 R. 466, 30 S.L.R. 469; Clark v. Chambers, 1878, 3 QBD 327; Lynch v. Nurdin (1841), 1 Q.B. (Ad.& El.) 29; Jewson v. Gatti (1886), 2 T.L.R. 441; Turnpike Act 1831, secs. 100 and 101 (Roads and Bridges Act 1878, Schedule). The brazier here was open to the road, and the defender ought either to have fenced it off or provided a watchman.

Argued for the defender and respondent—Fault had not been proved against the defender. He was in the execution of a lawful operation on the road, and he had taken all the precautions for the safety of the public that were usual in similar cases. He was not bound to take exceptional precautions. The evidence was that it was not considered necessary to fence such braziers or to provide a man to watch them even in the streets of a town where the danger might be greater. The danger here was not concealed but was of a kind obvious and familiar even to a young child.

The parties also submitted an argument on the question of contributory negligence, with which the Court found it unnecessary to deal.

At advising—