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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Strachan v. Caledonian Railway Co. [1910] ScotLR 456 (09 March 1910) URL: http://www.bailii.org/scot/cases/ScotCS/1910/47SLR0456.html Cite as: [1910] SLR 456, [1910] ScotLR 456 |
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Page: 456↓
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(See ante, March 11, 1909, vol. xlvi, p. 517.)
The pursuer in an action of damages for personal injury obtained a verdict which was set aside on the ground that contributory negligence on his part had been proved. At the new trial the pursuer upon practically the same evidence again obtained a verdict.
The Court set aside the second verdict as contrary to evidence, and granted a third trial.
Observations by the Lord Justice-Clerk and Lord Johnston on the practice of withdrawing a case from the jury.
John Mitchell, measurer, Greenfield Street, Alloa, brought an action against the Caledonian Railway Company for £1000 damages in respect of personal injury sustained through his having been knocked down and run over while crossing a line of rails in Grangemouth Docks, the property of the defenders, owing as he alleged to the fault of the defenders' servants. A similar action at the instance of Nathan Strachan, mill-hand, who was also run over and injured on the same occasion, was tried along with Mitchell's action, the evidence in the latter case being held as evidence in the former. The jury returned verdicts for the pursuers. In both cases the defenders obtained a rule, and on 11th March 1909 the First Division ordered new trials—see ante, vol. xlvi, p. 517.
At the second trials, on 27th and 28th December 1909, before Lord Johnston and a jury, the jury again returned verdicts for the pursuers, assessing the damages due to Mitchell at £400 and to Strachan at £200. In both cases the defenders again obtained a rule.
The averments of the pursuers are given in the previous report, and the import of the evidence sufficiently appears from the opinions of the Lord President in the previous report and from the opinion of Lord Johnston ( infra).
At the hearing on the rules the pursuers argued—The sole question here was whether there was contributory negligence. It was a question of fact and was purely for the jury, who were the tribunal saddled by the Legislature with the duty of determining the matter. They had done so in favour of the pursuers. Their verdict was conclusive, unless it could be shown that there was absolutely no evidence upon which they could have arrived at the result at
Page: 457↓
which they did. The defenders here were the pursuers in the issue of contributory negligence, and must prove negligence on the part of the men. A third trial had been granted in Watson v. North British Railway Company, December 6, 1904, 7 F. 220, 42 S.L.R. 165, but in that case the circumstances of the accident were such as to show that the man must have been careless. But even though the Court was against the pursuers on the merits, it was their duty to put an end to the litigation, there being no question of law— M'Quilkin v. Glasgow District Subway Company, January 24, 1902, 4 F. 462, 39 S.L.R. 328; Grant v. Baird & Company, February 20, 1903, 5 F. 459, 40 S.L.R. 365. Argued for defenders—The verdict was contrary to evidence. On the admitted facts there must have been contributory negligence. The evidence was all one way. No new evidence was added at the second trial. The case should have been withdrawn from the jury— Flood v. Caledonian Railway Company, November 30, 1889, 27 S.L.R. 127; Tully v. North British Railway Company, July 17, 1907, 46 S.L.R. 715.
If I had been aware at the time of the trial of the case of Tully v. North British Railway Company, 1907, 46 S.L.R. 715, I should have acted upon that case, and I should have withdrawn the case from the jury. I was very much disposed to do so upon my own authority, but I hesitated to take that, in Scotland, unusual course on the spur of the moment. I had never personally had experience of a case being withdrawn from the jury, and the comparative want of elasticity of jury practice in Scotland made me hesitate lest I should be taking a course for which there was no adequate precedent. That that course should have been taken in this case, even if it were to create a precedent, I have not the slightest doubt; and on more deliberate consideration I am enabled to say that though rarely taken, the course is competent, and that I should have taken it.
This case in its circumstances appears to be extremely like that with which the Lord President was dealing in Tully's case. Issues ought never to have been allowed in it, and had the case been ingenuously stated upon record issuable matter would not have been found. The issue was obtained by reason of the specious way in which certain facts were stated and others suppressed. Once the real facts are ascertained it is seen that there is really no issuable matter. In England, where there is no preliminary consideration of relevancy, but the question is left to arise at the trial, the judge would, when the facts were seen, have at once withdrawn the case. Unfortunately, according to our practice the relevancy has to be considered ab initio, and therefore the question is—Do the facts stated if proved support the conclusion in law? and not, Do the facts as proved lead to the legal result assumed?
Now the misleading statements in this record are two. The first is—“On the morning in question the pursuer entered the dockyard by the main entrance thereto from the highway, crossed an overhead bridge, and descended by a stair into the dockyard. In order to reach the said public road or pathway he had to cross the double line of railway before referred to at a point nearly opposite the defenders' goods shed in said dockyard”; and the second misleading statement is that the pace of the train which ran over the two men, and which is treated as a passenger train, and not merely as an empty passenger carriage attached to an engine, was fifty miles an hour.
What was proved with regard to the first statement to which I have referred, was this—and I take to aid the explanation, not the defenders' plan, which was laid before your Lordships, but the pursuers' plan, because it is really more distinct. The dockyard is fenced throughout; but as a dockyard it is of large extent, extending to 300 or 400 acres, and it has numerous sidings on it; and in respect that it is entirely or almost entirely a dockyard for the shipment of coal ex rail it is covered with railway lines and sidings. It has one so-called through line, connecting the main lines at Grangemouth station with Grangemouth dock. It is not to be supposed that within the dockyard the through line should be fenced from the sidings; it would be inconsistent with the object of either that it should be so. The dockyard is reached by a gate. You come out of Grangemouth by what is known as the Bo'ness road, cross the main line of the railway proper by a bridge a little to the
Page: 458↓
The public road alleged is the usual beaten track which surfacemen, shunters, and others employed in railway and dockyard work make alongside a line in going to and fro in connection with their work. This track is well worn, and runs from the level-crossing along the south side of the dockyard through line, crossing points and and signal wires past Gibb & Austin's works, at which the two pursuers were employed, and on to the dock eastward, and I have no doubt it runs westward also towards Grangemouth station. But there has been a great deal of promiscuous use of this track as a short cut by all and sundry, and latterly by Gibb & Austin's workmen, the railway company having failed to check trespass, with which they are much troubled at this and other points in the dockyard.
Let me now contrast the pursuers' allegations with the facts which they themselves state in their evidence. They allege that on the morning in question they entered the dockyard by the main entrance thereto from the highway—this they did; that they crossed an overhead bridge—this they did not; and descended by a stair into the dockyard—this they did, but in this wise, instead of crossing the bridge and coming down on the road on the other side and following it round the quay to the proper entrance to Gibb & Austin's works, they stepped down one of the side sets of steps meant for the railway company's workmen and got among the sidings and eventually on to the dockyard through line. They then go on to allege that in order to reach the said public road or pathway they had to cross the double line of railway before referred to at a point nearly opposite the defenders' goods shed in the said dockyard. But what they state in evidence is that having got in among the sidings they walked on till they found themselves abreast of the goods shed, and then, assuming the aforesaid track to be a public road, they had, in order to reach it, to cross the dockyard through line. This is what is meant by had to cross. And this is how they themselves tell us they did attempt to cross it. A goods train was passing on the up or far side line of rails, so they could not go straight across, but they made an oblique crossing of the down or near side line of rails to cut in behind the goods train when it had passed, and walked on regardless of the fact that a train might be coming on that near side line of rails, and if it did, that they had practically their backs to it. A train did unfortunately come up at the moment—at least an engine and an empty passenger carriage, which so far as they were concerned was just as bad. It knocked them over and severely injured both. But mercifully they were not killed.
The accident, then, did not happen on the alleged public road, but in course of a manifest trespass upon the railway lines in order to reach the alleged public road at a time when the level-crossing gates were shut, showing that through traffic was expected. Had this been candidly stated on record, there can be no question that the case would have been thrown out without ever being allowed to go to trial, for a more crying case of contributory negligence could not be conceived.
I do not think it necessary to refer further to the evidence, or to touch at all upon the ludicrously false statement that the offending engine and carriage were travelling at the rate of fifty miles an hour.
It appears to me that the case is exactly where the Lord President, the last time the case was before the Court, put it ( 1909 S.C. 746). If there is a difference between the evidence in the two trials, it is this—At the second trial the facts with regard to the locus were cleared up, whereas they were left in some doubt at the first trial; and the facts with regard to the conduct of the pursuers themselves and to the approaching train were also cleared up, whereas they were not very clear at the
Page: 459↓
For the reasons which I stated at the outset, although there have already been two trials, justice, in my opinion, requires that a third be granted. I think, therefore, that the rule should be made absolute.
The case is that these pursuers were run down by a train in circumstances in which they could not avoid it. I am very clearly of opinion that that was not so; my opinion is that they could not have been run down if they had taken reasonable care of themselves. In the first place, this train was visible for a considerable distance to anybody if there was nothing to obscure the view—visible at least for 100 yards—and no man who can see along a line for 100 yards, and who wishes to cross the railway, should step on to the line without first seeing that it is clear. He is not entitled to run any risk because a train may go faster one day than another.
But then it is said—I do not know whether this point came out in the last trial or not—that the line was obscured by two causes. One was that there were heavy bales of hay projecting over the trucks in the goods train and tarpaulins blowing in the wind, and the other was that the smoke from the goods train was obscuring the line so that they could not see. I can see no two stronger reasons, if they were true, for holding that these men were guilty of contributory negligence in crossing the line in such circumstances. If the view was obscured by projecting goods or tarpaulins of a train moving on the other line, then that is an additional reason for not crossing the line until assured that no train is on it. Strachan says that the smoke was coming down all the length of the line, and that it ran straight to the ground on the line. If we are to take that as true, nothing can be more plain than that the parties who went across the line in these circumstances were guilty of gross contributory negligence. But we know that all that evidence, both as to hay and tarpaulins and smoke, is untrue.
Now the evidence of contributory negligence is supposed to be set aside by another extraordinary contention, and that is that a party going to cross a line is entitled to cross it in circumstances of extreme danger to himself. Strachan says—“We were in a hurry to get to our work, and when we did not see anything coming behind us, why should we stop and lose the morning's work?” When we come to see what was done, we must conclude that nothing could be more extraordinarily dangerous than what they did. According to themselves, they were not able to see, yet they stepped on to the line and walked along it with their backs to the train that we now know was coming, because they were in a hurry. Of course they say that they looked round, but how comes it that they never saw the train at all, and that at the moment it struck them they had no idea it was coming. That goes to the question of credibility as bearing on the question of contributory negligence.
They seem to suggest that they were never on the four-foot way. Strachan says this—“(Q) Did you keep your head over your shoulder the whole time you were walking on the four-foot way?—(A) No; I was not on the four-foot way; I got knocked down when I came to the four-foot way.” That means that he must have stepped on to the four-foot way when the train was on him, which would not have been the case if he had been keeping a good look-out.
I am clearly of opinion that this verdict must be set aside.
With regard to the taking of a case from the jury, such action has never been encouraged in this Court. I only did it once, and I did it with some trembling as to what my brother Judges would say if the case came up again. There was one case in which Lord Moncreiff withdrew the case from the jury, and I remember he had a very uncomfortable time in this Division. But although it may not be a regular practice, I think there is no case in which it could be said to be more reasonable to do it than in a case in which two juries, upon practically the same evidence, have given two verdicts which cannot be supported. Mr Anderson can always make a good argument when he has got a case, but in stating this case he made it very plain to me that no sound argument in favour of this verdict could be stated. The rule will be made absolute for a new trial.
Page: 460↓
The Court set aside the verdicts and granted new trials.
Counsel for Pursuers— Anderson, K.C.— D. P. Fleming. Agents— Clark & Macdonald, S.S.C.
Counsel for Defenders— M'Clure, K.C.— Hon. W. Watson. Agents— Hope, Todd, & Kirk, W.S.
