Scottish Court of Session Decisions

In 1854 the Aberdeen Harbour Commissioners obtained an Act of Parliament for the purpose of laying the quays and streets adjoining the harbour with rails, and in particular in front of the Queen's Jetty they laid two lines of rails running parallel to Waterloo Quay. They were of what were known as the “four-inch bulb-rails,” with a plate bottom resting on longitudinal timber sleepers, the roadway between and on each side being laid with granite causeway blocks. These blocks were laid next to the rails and on the inside longitudinally, a space of about two inches being left between the half of the rail and the causeway for the flange of the waggon wheels to pass along. The space between the rail and the causeway on the outside was filled up with gravel. The bulb-rails were The kind of rails which were approved of and customary in 1854. A few years before this action the Commissioners laid down rails on about two miles of the harbour with a new kind of rail called the box-rail, in which the flange on the bulb is dispensed with, and which is considered a safer and more commodious kind of rail, but this new form of rail was not laid down in front of the Queen's Jetty.

On 6th January 1886 a carter who was in charge of a lorry belonging to William Wisely, a carter in Aberdeen, was employed to cart maize from a vessel which was berthed in the Queen's Jetty to a warehouse in Commerce Street. It was necessary for him to cross and recross the line of bulb-rails opposite the Queen's Jetty, which was on an inclined plane. There was some snow on the ground. While he was driving his horse from the ship's side across the rails the horse's off hind foot was caught in or under one of the rails and between the rail and the causeway, and the horse was thrown violently on its side on the causeway, its foot being still held fast under the rail, and it was not till the street was torn up that the foot was extricated.

Wisely laid this action against the Harbour Commissioners to recover £35 as damages for the accident. The grounds of action appeared from his pleas-in-law—“(1) The defen ders being proprietors of the rails around the harbour of Aberdeen, which they use for the purpose of making profit, are bound at all times to maintain them in such a state that the public may cross them at any point in safety, and the defenders are bound to recoup the public for injuries caused by unsafe or insufficient or defective plant. (2) The pursuer, as a member of the public, and as a carter engaged in carting cargo from ships in the defenders' harbour, was entitled in the exercise of his business to cross the defenders' rails with horses and loaded lorries at any point, and to assume that every part of the defenders' line of rails could be safely crossed by horses and lorries, and in particular that the part opposite the Queen's Jetty, was safe for horse traffic from the jetty across the quay; (3) The pursuer's horse having been permanently injured by the defenders' plant in consequence of its unsafe or insufficient or defective condition, or otherwise through the defenders' fault as above set forth, the pursuer is entitled to damages as against the defenders.”

The defenders in answer stated that at the time of the accident the rails were in as safe and sufficient condition as it was possible to have them. The rails and the causeway were still in the same condition in which they had been, and had been so for many years, and were continually crossed by carts and horses without accident. They further averred that the snow on the ground was the direct cause of the accident.

They pleaded—“(1) The defenders' rails immediately in front of the Queen's Jetty being in a safe and sufficient condition, and in no way defective for the passage of carts and horses, they are not responsible for accidents happening in crossing the same. (2) The defenders' plant at the place mentioned being in no way defective, or at all events being as safe and sufficient as it was for ordinary care and skill to make it, and no fault being attributable to them or their servants, or those for whom they are responsible, the action should be dismissed.”

The Sheriff-Substitute ( Dove Wilson) found that the pursuer had failed to prove that the accident happened in consequence of the negligence of the defenders; therefore assoilzied the defenders from the conclusions of the action.

On appeal the Sheriff ( Guthrie Smith) affirmed the interlocutor appealed against.

“ Note.—The question argued in this case was as to the relative merits for use on the public streets of the bulb and the box rail. I think that there is evidence that the box rail is the safer of the two, and if the rails were now to be laid for the first time, it might be preferred. But these rails were laid many years ago, and it must be assumed that in the then state of mechanical science the defenders, as statutory trustees, acted well for the public interest. The theory on which public undertakings of this kind are carried out in this country is that, subject to the Board of Trade, a great many details affecting more or less the safety of the public are necessarily left to the decision of the local administrators; and when the rails selected by them are laid down on the streets in terms of the statute, they came to be lawfully there, and the public must submit to any inconvenience which may result from the double use of the streets by arts and railway waggons in the manner contemplated

Page: 316↓

and sanctioned by Parliament. A duty arises after the line is laid which is due by the statutory body to the public—that the roadway, as far as practicable, shall be kept in good and sufficient repair. But in so far as the evidence throws any light on this point I think there was no negligence on the part of the defenders in this respect. What may be the circumstances in which it would be negligence for the public authority to allow the rails to continue, after the worthlessness of the particular pattern actually laid down had been demonstrated by experience, is a large question. The duty to adopt welltested improvements may be greater in some situations than others. It would be easy, for instance, to make the requisite change at a level crossing; but not so easy to lift and relay a system extending for miles. So, while it may be the duty of a carrier of passengers to look to their safety by adopting the latest improvements in the mode of transport, the obligation to keep pace with the new inventions of the day is certainly not so great in the case of master and servant, for if the servant does not like the style of the work he may leave it; and still less in the case of a public body, whose function it is to see to the public thoroughfare. Any change in the existing system of rails which may be resolved on must be a gradual process, and any question as to the time, mode, and extent of the change must be left, I conceive, to their own discretion. I think, therefore, the Sheriff-Substitute has rightly held that the defenders are not open to the charge of negligence, and not liable for this accident.”

The pursuer appealed.

At advising—