Scottish Court of Session Decisions

Thomas Watson, lorryman, in the employment of Messrs J. & A. Hutton, Edinburgh, brought an action against Wordie & Company, general carriers, in which he sued them for £500 damages for injuries.

He averred, inter alia—“(Cond. 2) On or about 23rd March 1905, between 8 a.m. and 9 a.m., the pursuer was driving a lorry containing a load of timber from Leith Docks to the timber yards of his employers at Newington. He was, as is customary when driving a lorry, seated on the left-hand corner thereof, with his right leg hanging over the end nearest the horse, and his left leg over the side. While proceeding up the North Bridge the pursuer overtook a two-horsed lorry (afterwards ascertained to belong to defenders) proceeding slowly in the same direction. The North Bridge is very wide, and between the eastmost car line and the footway there is ample room for two lorries to pass each other. (Cond. 3) As the pursuer was anxious to reach East Newington Place as soon as possible, and defenders' lorry was proceeding slowly, it was necessary for pursuer to pass defenders' lorry on the right-hand side. To accomplish this pursuer pulled his horse to the right. As he was doing so he heard a car bell ring, and in order to satisfy himself that he was not the cause of any obstruction he turned his head for a moment in the direction of the car. At that moment one of the horses in the defenders' lorry ‘reested,’ or suddenly halted, with the result that defenders' lorry suddenly and unexpectedly stood still, and before pursuer was able to pull up, the defenders' lorry came into contact with pursuer's left leg and crushed it between the two lorries. Had said horse not ‘reested’ pursuer could easily have passed the defenders' lorry. (Cond. 5) The said accident was due to the fault and negligence of defenders. They were well aware that one of the horses yoked in said lorry was a ‘reester,’ or one which has the vicious habit of suddenly halting in the street, without any cause or without any previous warning, and obstinately refusing to proceed. This kind of horse is well known to all horse-dealers and users of horses, who in consequence do not use them in the public streets, as their employment there is attended with danger to the public using said streets. The defenders well knew that

Page: 645↓

the use of the horse in question in their said lorry was attended with danger to the public, as the said horse which ‘reested’ had on previous occasions (as the defenders well knew) behaved in the same manner in the public streets. It was not safe for defenders to employ said ‘reester’ in the public thoroughfares, and in so employing it they were guilty of gross and culpable negligence. The pursuer had no knowledge of said horse.”

He pleaded, inter alia—“(1) The pursuer having been injured through the fault of defenders in negligently and culpably employing said vicious horse on a public street, as above condescended on, is entitled to reparation from defenders as concluded for in the summons.”

The defenders pleaded, inter alia—“(1) The pursuer's averments are irrelevant and insufficient to support the conclusions of the summons. (3) The said accident having been entirely due, or at least materially contributed to, by the negligence of the pursuer, the defenders ought to be assoilzied from the conclusions of the summons.”

On 3rd February 1006 the Lord Ordinary ( Salvesen) pronounced an interlocutor approving of an issue in ordinary form.

Opinion—“The circumstances out of which this action of damages has arisen are of a somewhat unusual and perhaps novel character. The pursuer avers that he was driving a lorry along North Bridge, and that he was on the point of passing another lorry belonging to the defenders, which was proceeding somewhat more slowly, when one of the horses of the latter lorry suddenly halted, with the result that his left leg, which was hanging over the side, was jammed between the two lorries and seriously injured. The fault alleged against the defenders is that the horse which suddenly halted was a ‘reester’—that is to say, an animal which has the vicious habit of stopping suddenly of its own accord when it is being driven in the ordinary way. The ursuer says that such horses are well known to all users of horses, and that their habits make them a source of danger to public traffic. He accordingly maintains that the defenders were to blame in employing such an animal in one of their lorries.

The defenders urged that the action was irrelevant on the ground that the driver of a lorry is entitled at any moment to bring his vehicle to a stand without regard to the traffic behind him, and that no liability can rest upon them for the lorry being suddenly brought to a stop, whether that was done by the action of the lorryman or occurred in consequence of the vicious nature of the horse. In my opinion, the contention thus broadly stated is not well founded. It is, of course, plain that there may be many occasions where the driver of a vehicle is not merely entitled but bound to bring it to a sudden stop, e.g., in order to avoid collision with other vehicles or with foot-passengers, but I cannot affirm that no liability will ever rest on a lorryman or his employers if a lorry is unnecessarily brought to a standstill so as to endanger vehicles which are immediately behind or in the course of passing. While the primary duty of the river of a vehicle is to look ahead, I think that there may sometimes be a duty upon him if he wishes to bring his vehicle to a sudden stop to ascertain whether that can be safely done with reference to the traffic immediately behind, and if necessary to warn such traffic of his intention. If so, it would seem to follow that the employment of a horse whose character is such that it may at any time bring the vehicle to a sudden stop without the knowledge of the driver and without any action on his part, may, I think, constitute negligence. At all events I am not prepared, in the state of the averments, to hold that the pursuer has not stated a relevant case for inquiry.

The defenders further pleaded that it was plain from the pursuer's averments that his own want of caution or failure to fulfil the duties of a driver had contributed to the accident. The pursuer admits that at the moment when the accident happened he had turned his head at the sound of a bell from an approaching tramcar. Whether that very natural action on his part constituted contributory negligence in the particular circumstances in which it occurred seems to me a question which cannot safely be decided on relevancy, but ought to be submitted to the determination of the jury. I shall accordingly approve of the issue which the pursuer has lodged for the trial of the cause.”

The defender reclaimed, and argued—There were no relevant averments of fault. The averment that the horse suddenly halted was not a relevant averment of fault, because a lorry horse proceeding at a walk might stop or be stopped for many innocent purposes, and such a stoppage was one of the ordinary incidents of the streets which should have been kept in view by anyone following behind. The fact that in this particular case a stoppage, in itself innocent and normal, was caused by a bad habit of the horse was obviously immaterial, as the bad habit had not produced any result which might not have followed from the ordinary proceedings of the most exemplary of horses and drivers. The case of Auld v. M'Bey, &c., February 17, 1881, 8 R. 495, 18 S.L.R. 312, was distinguishable, the vehicles in that case having been progressing at a rapid pace. In any case the pursuer's averments showed that he had been guilty of contributory negligence.

Argued for the pursuer and respondent—If the horse had not been vicious he would not have stopped at that particular moment, and no accident would have happened. Accordingly it was a vicious habit known to the defenders which had caused the accident. This was not a case of a driver voluntarily stopping for a justifiable cause. There had been no contributory negligence, but in any event that was a question for the jury.