Scottish Court of Session Decisions

This was an appeal by the pursuer, John Grant, in an action for damages and solatium, brought by him in the Sheriff-court of Renfrewshire, against the Caledonian Railway Company, as lessees of the line between Greenock and Glasgow. The summons concluded for the sum of £500 sterling “in name of damages and solatium due to the pursuer by the said defenders for the loss of his daughter Lillias Jane Grant, a child aged seven years or thereby, who was, on or about the 3d day of October last, 1867, while in the act of passing over a crossing on the level of the defenders' line of railway at or near Carnegie, near Port-Glasgow, or being upon or near the same, ran against or struck by a railway-engine with a passenger-train attached, which at the time was running at full speed from Greenock towards Glasgow, and who thereby received such injuries in her person that she immediately or very soon thereafter died; and which injuries were so inflicted through the gross carelessness or culpable negligence or fault of the defenders or their servants, or others in their employment for whom they are responsible, by their failure to have a proper person appointed at the said crossing at Carnegie Park to open and shut the gates on either side thereof, so as to prevent accidents, and by their having culpably failed to use the proper and necessary precaution of slowing the engine of the said passenger-train, or to use the precaution of sounding the steam-whistle in approaching within a reasonable distance of the said crossing at Carnegie Park with the said train, on the occasion on which the said Lillias Jane Grant was killed, as before libelled.”

The facts of the case will be seen from the following interlocutors of the Sheriffs:—The Sheriff-Substitute ( Guthrie) delivered this judgment—“Finds in fact, that the pursuer's deceased daughter Jane Grant, a girl six years and seven months old, was killed on the 3d day of October 1867 while crossing the defenders' line of railway at Carnegie farm level crossing between Port-Glasgow and Bishopton, by the engine of the up-train which left Greenock for Glasgow at half-past 3 o'clock p.m.: Finds that the deceased was going at the time from her home at Woodhall, a quarter of a mile distant from the said crossing on the south side of the defenders' line of railway, to buy fruit at a market garden at Carnegie farm, on the north side of the said line of railway, and was accompanied by her elder brother Duncan Grant, thirteen years of age, and that when she reached the said crossing she waited with her brother till the down-train, which left Glasgow for Greenock at 3 o'clock p.m., had passed on the south or downline of rails: Finds that the deceased Jane Grant, immediately after the down-train had passed, attempted to cross the rails behind it, and was struck by the engine of the said up-train, and so severely injured that she shortly afterwards died: Finds that the engine-whistle of the up-train was not sounded as it approached the crossing, but that the said up-train could have been seen approaching from the south side of the line, or from the gate on that side, by the deceased and her brother: Finds that the said level crossing is a private level crossing for the use of the occupiers and inhabitants of the said farm and gardens connected therewith: Finds that the pursuer has failed to establish any other fault against the defenders, and in these circumstances finds in law that the defenders are not liable to the pursuer in terms of the conclusions of the summons: Therefore assoilzies the defenders from the conclusions of the action—Finds them entitled to expenses.”

The case was appealed to the Sheriff ( Fraser), who dismissed the appeal, and adhered to the Sheriff-Substitute's interlocutor, except as to the finding of expenses, which he altered, finding no expenses due to either party.

In the note to his interlocutor he says—“Five different acts of fault are alleged against the defenders, for one or all of which they are sought to be made liable in damages—(1) It is said that they ought to have kept a watchman at the level crossing in question and failed to do so; (2) that neither the engine-driver nor the driver kept a look out when the train came to the crossing; (3) that the engine-driver did not slow the engine when he came near the crossing; (4) that he did not sound the whistle; and (5) that a certain notice required by the rules of the defenders was not served upon the inhabitants of Carnegie Farm.

“None of the private Acts of Parliament connected with this railway are in process. But the Sheriff has examined them in the Advocates' Library. He finds that the Act authorising the construction of this railway received the Royal Assent on 15th July 1837 (1 Vic., cap. 116). There are subsequent Acts, but this is the principal one. This statute was passed before the Railway Clauses Consolidation Act, which became law in 1845, and before the previous General Regulation Acts, 5 and 6 Vic., c. 55, or Act 2 Vic., c. 97, all of which statutes are made applicable only to railways formed after they were passed … In these circumstances the Sheriff must deal with this case upon the footing that there is no statute law applicable to the undertaking, except the private Acts of the Company itself.

In the private Act already referred to (1 Vic., c. 116), the 202d section clearly contemplates that level crossings may be made. That section is in the following terms:—‘Provided that the railway is not to be used as a passage for horses and cattle, except only in directly crossing the same at any roads or places to be appointed for that purpose.’ The 203d section also is in the following terms:—

‘And whereas it may be attended with very great danger if the said railway should be used by persons on foot, be it therefore enacted that if any person shall be, or travel, or pass upon foot upon the said railway, without the license and consent of the said company, unless for the purpose of attending any carriage under his care, or in crossing the said railway by any road or footing on the level thereof, and except the respective owners or occupiers of lands through which the said railway shall pass, and their respective servants in passing across, or over the same as hereinbefore authorised, every person so offending shall forfeit and pay any sum not exceeding £10 for every such offence.’ These are all the clauses in the statutes that have any bearing on the question. The history of the level crossing is told in the deposition No. 7 of

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process, by James Foster King and others, in favour of the Glasgow, Paisley, and Greenock Railway Company, dated 17th March 1846, from which it appears that the railway company, and the proprietor of Carnegie Farm, had come to an agreement that there should be a level crossing at the place where the accident happened, for the use of that farm. The level crossing, therefore, was a lawful thing. It was, moreover, a private level crossing, not crossing a turnpike or statute labour road, or other highway, and therefore all the provisions contained in the Railway Clauses Consolidation Act (assuming that Act to be applicable to this railway in reference to level crossings over public roads) have no bearing on this case. In the General Railway Clauses Act there is no provision, so far as the Sheriff can see, in regard to private level crossings.

The general principle of law is here, however, applicable, that the defenders must conduct their business with reasonable care and caution. Such is the rule of the common law; and there is no reason why it should not be enforced against a railway company, although the company has been incorporated and authorised to conduct its business by Act of Parliament. The difficulty is to apply the general principle to the special facts that are here proved.

(1) In regard to the absence of a watchman: it is proved that there was none, and the Sheriff is of opinion that there was no duty on the defenders to have a watchman at this crossing. It was decided in the case of Stubley v. London and North-Western Railway Company, 1 Law Reports, Excheq. 13, that a level crossing over a public highway need not be guarded by a watchman, and it would seem to be unreasonable to require this in reference to a private level crossing made for the convenience of the adjacent proprietor, who had agreed to take a level crossing instead of a bridge.

(2) It is said that neither the engine-driver nor the fireman kept a look-out. If this were proved there would certainly be a fault inferring liability in damages. It could not be said in such circumstances that reasonable care and caution had been used in conducting the train. But the Sheriff holds that this has not been proved. On the contrary, it is proved that both the engine-driver and fireman were at their posts, and were keeping a look-out, although from the height at which they stood they were unable to see the small child at the time when they approached the crossing.

(3) It is proved that the engine was not slowed as it came up to the crossing, and it never is. It appears from the evidence that there are no less than four level crossings on this railway between Langbank and Port-Glasgow, and wonderful it is that accidents do not happen every day in consequence.… At the same time, the Sheriff can find no authority requiring a railway company to slow their trains upon approaching a private level crossing. By the 41st section of the Clauses Consolidation Act it is enacted ‘that where the railway crosses any turnpike road on a level adjoining to a station, all trains on the railway shall be made to slacken their speed before arriving at such turnpike road, and shall not cross the same at any greater speed than four miles an hour.’ The absence of any such provision in regard to private level crossings indicates that the speed of the trains need not be slackened on approaching them.

(4) It is, in the next place, said that the driver of the engine did not whistle in approaching the crossing, and the Sheriff has found this to be proved. There is some conflict of evidence on the point, but it is unnecessary to analyse it, as the Sheriff has come to the opinion, on the law, that the absence of this warning did not amount to fault rendering the defenders liable in damages. It is with some hesitation and doubt that he has arrived at this conclusion, but he cannot find authority for holding that a railway company is guilty of negligence because the whistle of the engine is not sounded in approaching every private level crossing. To cross a railway level is always attended with danger, and persons doing so are bound to use all reasonable precaution that the circumstances admit of, by looking up and down the line for approaching trains, and are not entitled to rely upon the drivers of engines giving them warning of their approach. In the present case an engine could be seen from the railway crossing to the extent of upwards of 300 yards. There was no bridge erected by the defenders to intercept the view, a circumstance which existed in the case of Bilbee v. London and Brighton Company, 34 L. J. C. P., p. 183, upon which the judgment of the Court in that case turned, as explained by the judges in the subsequent case of Cliff v. The Midland Railway Company, 2d February 1870, 22 L. T., New Series, p. 382.

In regard to the alleged duty of the railway company to cause the whistle of the engine to sound in approaching a crossing, opinions of eminent judges have been expressed, which cannot, however, be regarded as decisive, because in all the cases there was special matter involved … .

In the case, for instance, of James v. The Great Western Railway Company, 2 L.R.C.P., p. 364, the point arose under somewhat special circumstances.

‘It appeared from the evidence that it was a dark foggy morning at the time of the accident, and the railway was also obscured by smoke from neighbouring spelter works. The plaintiff exercised due caution by looking up and down the line, but did not see the engine for the above reasons. According to the plaintiff's evidence the engine had no light, and the engine-driver did not whistle or give any notice of his approach. The jury found a verdict for the plaintiff for £200.’ A rule nisi having been obtained to set aside the verdict on the ground that there was no evidence to go to the jury of negligence on the part of the defenders, the Court discharged the rule ‘on the ground that the defendants were bound to use reasonable precautions in the working of their line, and that, considering the darkness, it would have been a reasonable precaution to whistle before coming to the crossing, and that therefore there was some evidence to go to the jury of negligence on the part of the defendants.’ The opinion of the Court will be found at length in the Law Journal, vol. 36, C.P., p. 255 note. In this case the Court, dwelling so much upon the foggy night, darkness, &c., seemed to be of opinion that the non-whistling alone would not constitute fault inferring liability in damages.

“In this state of the authorities, the Sheriff is unable to come to the conclusion that there was fault on the part of the defenders in regard to this matter. He adopts the opinion of Lord Chief-Justice Erie in the case of Bilbee v. London, Brighton, and South Coast Railway Company, above referred to— ‘I am fully impressed with the necessity

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of not imposing duties upon a railway company beyond what the statute intended.”

The fifth ground of fault mentioned in the Sheriff's note as alleged against the defenders need not be touched upon.

The pursuer appealed to the First Division of the Court of Session.

Black for him.

Solicitor - General and Johnstone for the Railway Company.

The pleas chiefly insisted on by the parties in this Court were:—For the pursuer—“That the defenders being bound by statute and at common law to use every necessary and proper precaution to prevent injuries to persons using said crossing, and. having failed, on the occasion libelled, to use any precaution whatever, they are guilty of gross negligence and carelessness, and therefore are liable to the pursuer for the loss of his daughter, as concluded for.” And for the defenders:—“That the pursuer's child not having met with the accident which caused her death through any fault of the defenders, they are not liable to damages, and are entitled to absolvitor.”

The most important evidence was that of Duncan Grant, brother of the child whose death had been caused by the accident, and who was with her at the time. He deponed—“I am thirteen years old. I was with Jeanie when she was killed. We were going to buy pears at Mr Maclaren's garden, across the railway. I heard a train coming from Glasgow. We waited till it passed. Immediately after this Jeanie crossed, and a train coming from Greenock knocked her down. I began to greet, and some people came and lifted her. Our servant told me to go with Jeanie to buy the pears.

“ Examined for defenders.—No one else with me but my sister. She had the money. I was not going over the railway. I was to wait till she came back at the gate at road. I did not go through the gate at all. When Glasgow train came past she made the run. She looked up to Glasgow to see if there were more trains. I could not see the engine strike her as she was on the other side. She was lying on the ground when I saw her next. There was blood on the ground. She had the penny in her hand when she ran across. She could not see the train coming up for the one going down. I am no sure if she looked to see if it was coming.”

The nature of the crossing is thus described by Duncan Macfarlane, civil engineer, Greenock, a witness for the pursuer—“I inspected the Carnegie crossing on behalf of pursuer. Distance between gate on the turnpike road and the railway is 11 yards. When standing at that gate you can't see more than 10 yards up the line. Slopes of railway, bushes, &c., prevent it. Probably see 5 yards down the line to Port-Glasgow. When you pass gate to edge of railway you will see 30 yards up the line (towards Glasgow). Breadth of railway 30 feet. These distances refer to rails nearest turnpike road. At a point 6 feet from rails I can see about 30 yards up, and same distance down on rails next me. It is a very dangerous crossing on turnpike road side, because you are on the concave side of the curve. On a stormy day you would have no warning till the train was upon you, for noise of train would not be heard.

“ Examined for defenders.—If you advance to within a foot of the line you might see 300 to 400 yards on the further rails. I can't say how far on near rails. I think you would see the same distance up and down. On the north of the railway the view is much better, and the crossing consequently less dangerous, because you are on the convex side of curve of railway.”

At advising—