Scottish Court of Session Decisions

This was an appeal from the Sheriff Court of Lanarkshire at Glasgow in an action of damages for personal injuries at the instance of William M'Laughlan, a miner residing at 31 Drumpark, Old Monkland, against the Clyde Valley Electrical Power Company, 52 Bothwell Street, Glasgow.

The sum sued for was £250.

The pursuer averred—“(Cond. 2) On or about Thursday 10th August 1005 the defenders were engaged laying an electric cable in Shettleston. In connection therewith they had made an excavation in the north side of Main Street there, a few yards to the east of Station Road. Said excavation, which was about four feet in depth and two and a half feet wide, was situated two feet or thereby from the footpath on the north side of said street. (Cond. 3) On said date, about eleven o'clock at night, the pursuer was on his way home from Shettleston to Drumpark, and was in the act of crossing from the footpath on the north side of said street, in order to catch a tramcar for Barrachnie, when he fell into said excavation. The night was dark at the time and the pursuer did not see the excavation, which was uncovered and without any guard rope or protection of any kind. There was no light at the excavation, nor was there any warning given to the pursuer of its existence.… (Cond. 4) In consequence of falling into said excavation the pursuer sustained very severe injuries. Amongst other injuries he is suffering from very severe bruises on the chest and right down the right leg. He has also sustained a severe nervous shock. He has been confined to bed as a result of his injuries, and has been incapacitated from carrying on his work. The pursuer has suffered much on account of his injuries, and it will be a considerable time before he recovers from their effects.”

He further averred that the injuries sustained by him were entirely due to the fault and negligence of the defenders or their servants, in respect that the excavation was neither covered nor fenced nor lighted; that it was the duty of the defenders and the usual course to have had the excavation securely fenced and properly lit; that the defenders, though aware of the dangerous condition of the excavation in question failed to take such precaution, and that they were therefore liable.

The defenders denied that the place was not properly fenced, and averred that “the pursuer's fall and consequent injuries (if any) were entirely due to his own fault and recklessness while under the influence of drink. The excavation was well lighted and properly and sufficiently fenced and guarded, a watchman also being in attenance, and with the exercise of ordinary care and precaution the accident could easily have been avoided.”

The Sheriff-Substitute ( Fyfe) having allowed a proof the pursuer appealed for jury trial.

When the case appeared in the Single Bills counsel for the defenders moved the Court to send the case back to the Sheriff in accordance with the rule laid down in Sharpies v. Yuill, May 23, 1905, 42 S.L.R. 538.

Argued for the defenders—The injuries alleged to have been sustained were trifling. The pursuer averred no definite injuries with the exception of an injury to his leg, which was not a serious injury. He did not aver how long he had been laid up or confined to bed, or prevented from going to his work. The case ought to be sent back to the Sheriff.

Argued for the appellant—The mere matter of amount was not conclusive— Sharples v. Yuill, cit. sup. The injuries sustained by the pursuer were similar to those alleged in the case of Sharples, and in that case an issue was allowed. The pursuer had sustained “very severe bruises” and a “severe nervous shock.”