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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scoullars v. Crawford & Fulton [1868] ScotLR 5_620 (27 June 1868) URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0620.html Cite as: [1868] SLR 5_620, [1868] ScotLR 5_620 |
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Page: 620↓
Form of issue adjusted to try an action of assythment founded on the alleged fault of the defenders, the pursuers alleging that the deceased was lawfully on the premises when he received the injury which caused his death.
This was an action of damages by the widow and children of a man who was killed by the falling of the roof of a shed in course of erection by the defenders. The pursuers averred that the shed fell through the fault of the defenders, and that the deceased was at the time “at work below the roof which fell, being then engaged in laying a line of rails through the shed.” The defence was (1) a denial of fault, and (2) that the deceased had no business to be where he was when the shed fell.
The pursuers proposed an issue for trial, simply putting the question whether the deceased was killed through the fault of the defenders. The defenders objected to the proposed issue that it did not embrace the question whether the deceased, who was not in the defenders' employment, was at the time lawfully within the premises. They maintained that this ought to be put in issue, because, even assuming fault on their part to be proved, there was no obligation on them to pay damages to the pursuers unless it was also proved that the deceased was lawfully on the premises; and without this averment the action would not have been relevant. They referred to Teasdale v. Monklands Railway Company—Sc. Law Rep., ii, 6.
The Lord Ordinary (
Watson and Trayner, for the pursuers, argued that the whole case could be tried under the general issue of fault. They referred to Frazer v. Younger Son, 6 Macph. 861.
Solicitor-General and Burnet, for the defenders, were not called upon.
The Court held that the pursuers were bound to take an issue as proposed by the defenders, and it was adjusted in the following terms:—
“It being admitted that the pursuer, Mrs Isabella Smith or Scoullar, is the widow, and the other pursuers are the lawful children, of the said deceased Andrew Scoullar.
Whether, on or about the 4th day of December 1867, the said Andrew Scoullar, when engaged in laying a line of rails below a shed, then in the course of erection by the defenders, upon the west quay of the Albert Harbour, Greenock, sustained injuries, in consequence of which he died, by the falling of the roof of said shed, through the fault of the defenders—to the loss, injury, and damage of the pursuers, or any of them?”
Solicitors: Agents for Pursuers— Neilson & Cowan, W.S.
Agent for Defenders— Wm. Mason, S.S.C.
