Scottish Court of Session Decisions

This was an action of damages for personal injuries at the instance of Mrs Phillips, wife of James Phillips, insurance superintendent, Dundee, with consent of her husband, against James Nicoll, Millgate, Arbroath, and David Harris, butcher, there.

The facts of the case were stated by the Sheriff-Substitute ( robertson) in his interlocutor as follows:—“Finds in faet that on the 9th August 1882 the female pursuer while walking in Hill Street, Arbroath, was injured by a cow belonging to the defender Nicoll: Finds that Nicoll's servant had charge of this animal, and was taking it through the streets of Arbroath from the slaughter-house to a byre belonging to the defender Harris: Finds that the cow was in an excited and dangerous state, and required to be conveyed through the public streets with more than ordinary care: Finds that the animal was secured by a rope and halter, but that this mode of securing it was not sufficiently effective, in consequence of which it broke away from the defender's servant and ran at a furious pace upon the pavement of Hill Street: Finds that the female pursuer was either knocked down or was trampled upon by it, and sustained severe contusions on the side and leg, and that she was confined to bed for a fortnight, during which time she suffered severe pain: Finds in law that a master is liable for any carelessness of his servant in conveying an animal through the public streets, as also for the sufficiency of the tether and mode of securing the animal: Finds in fact and law that the precautions taken for the safe transit of the cow in question were not sufficient to relieve the defender Nicoll of all responsibility: Finds, therefore, that damages are due to the pursuers; assesses these at £25.” He assoilzied the defender Harris.

On appeal the Sheriff ( trayner) recalled this interlocutor and assoilzied the defenders.

“ Note.—… In a case like the present it is necessary for the pursuer to establish that the injury oomplained of arose out of some fault or negligence on the part of the defender. Such fault or negligence I cannot find established. The case presented by the pursuer is that the cow in question had become excited or infuriated in the shambles or byre adjoining the shambles, where it had been kept the night before the accident, and that being infuriated or excited when it left the shambles on the 9th of August, it was driven along the public street without sufficient precaution having been taken to prevent it injuring the passers-by. There are then two questions to consider, (1) Was the cow excited or infuriated when it left the shambles? and (2) if so, Was it sufficiently secured to make it safe to lead such a cow through the public streets? The evidence chiefly relied upon by the pursuer is that of the inspector of markets and slaughter-houses in Dundee [David Knight], who says (1) that cows brought to the shambles ‘are apt to get excited after smelling the blood and offal in the slaughter-house, and I have often seen them infuriated;’ and (2) that he ‘would not consider an animal taken from the slaughterhouse to be secured with merely a halter and a rope. I should recommend it to be tied at the head and feet.’ This evidence (although proceeding from a witness of great experience in the matter to which he is speaking, and perfectly reliable) stands alone and without corroboration. But giving it the same effect as if spoken to by half-a-dozen witnesses, it amounts to this (on the first question), that animals are ‘apt’ in the circumstances described to become infuriated, and often do so. Plainly the effect spoken to is not invariable although frequent. Now, turning to the rest of the evidence, I find no proof whatever that the night's lodging in the byre adjoining the shambles had this effect upon the cow in question. The pursuers do not attempt to prove that when the cow left the shambles or byre on the morning of the 9th August it was excited or infuriated, or indeed was in any state which would suggest to the person having charge of it that it required any unusual care to be taken in order to prevent it doing injury to others. It is proved (1) that the cow was quiet before it went to the shambles, (2) that it was quiet immediately after

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it had. had the run in the course of which it knocked down the pursuer, and (3) was quiet when taken back to the shambles a few days afterwards. I take it therefore that the cow was quiet when it left the byre or shambles on 9th August. On the second question, I remark that if the cow was quiet when it left the shambles, and showed no signs of being excited or infuriated, then there was no need for extraordinary precautions. The ordinary mode of securing a cow passing through the streets is proved to be by means of a rope and halter, and that was the course adopted here. The defender, so far as I can see, was not guilty of fault or negligence in any way. Various causes are suggested to account for the cow running away. It appears to me that (whatever was the immediate cause of it) the fact is, the cow was frightened by something or somebody after it left the shambles, and that this fright made it run off. But such a contingency could not be foreseen, and therefore was not a contingency which the defenders were bound to provide against. Cows and horses will run off at times without blame or fault being attributable to anyone, and if under such circumstances injury is done, it is a misfortune which must just be borne by the person who has suffered. ‘For the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid'—— per Bramwell, B., in Holmes v. Mather, L.R., 10 Exch. 267.”…

The pursuer appealed to the Court of Session, and argued — There was a special duty on the defender to take more than ordinary precautions against trivial occurrences, in respect of the ex—citable state of the animal— Clark v. Armstrong, July 11, 1862, 24 D. 1315; Burton v. Moorhead, July 1, 1881, 8 R. 892; Hennigan v. M'Vey, Jan. 12, 1882, 9 R,. 411; Fletcher v. Rylands, L.R., 3 H. of L. 330.

At advising—