Scottish Court of Session Decisions

On the evening of 4th June 1887 Thomas Crawford, cattle-dealer, Belfast, arrived with 56 cattle at Stranraer by steamer from Larne. The railway from Stranraer pier to Newton-Stewart was the property and under the management of the Portpatrick and Girvan Joint Committee. He desired to have the cattle forwarded by rail from Stranraer to Newton-Stewart. It was necessary as a condition to have a permit from the local authority. Crawford sent his son, a lad of nineteen, to get the permit, and he himself left Stranraer by the train. During this time the cattle had been put in pens belonging to the railway company close to the line, and used for keeping cattle in until they were trucked. The son did not return until the last cattle train for the night had left Stranraer. The cattle were then driven out of the pens, and put into an enclosure adjoining them, in which there was water, and in which young Crawford gave them hay. The fence round this enclosure or yard was composed of sleepers, with the exception of a part next the railway, at which it was composed of posts and moveable wooden bars fitting into notches in the posts. Young Crawford having fed the cattle left them, and went away for the night without leaving anyone in charge. During the night a number of the cattle got out of the enclosure and got upon the railway line, with the result that six were killed and two injured by a passing train.

Crawford brought an action against the railway company in the Sheriff Court at Stranraer for £46 as the value of the cattle killed and injured.

The pursuer averred that the defenders had taken possession and charge of the cattle at Stranraer, and put them into their enclosure, and that the cattle escaped in consequence of the defective condition of the fence of the enclosure.

The defenders averred that the yard or enclosure was used only for the loading of horses,

Page: 441↓

and for driving cattle through into the pens beside the line; it was not intended to be used for keeping cattle in all night, and the pursuer's son had been informed of that fact, and that the cattle were in his charge.

The pursuer pleaded—“(2) The said cattle having been destroyed and injured through the fault of the defenders, decree should be granted as craved. (3) The cattle having been regularly received into the custody of the defenders for transmission to Newton-Stewart, and no other person having any power or authority from pursuer to interfere in any way with them, the defenders were responsible for their safety.”

The defenders pleaded—“(2) No contract of any kind having been entered into between the pursuer and the defenders as to the cattle in question, and the said cattle having been destroyed or injured through no fault of the defenders, or of those for whom they are responsible, they are entitled to decree of absolvitor, with expenses. (3) The said cattle having been under the sole control and management of the pursuer, or of those for whom he is responsible, and the damage or injury to said cattle having been caused, or materially contributed to, by the negligence and want of reasonable care on the part of the pursuer, or those for whom he is responsible, the action should be dismissed, with costs.”

The Sheriff-Substitute ( Dickson) allowed a proof. The result of the proof was to show that Crawford's son, although he had no special authority from his father on this occasion, and generally acted as a servant, was frequently sent over in charge of cattle from Belfast to Stranraer; that Crawford had left Stranraer before his son returned with the permit of the local authority, and that there was no one else but the son to take charge of the cattle; that the cattle were put into two small pens until young Crawford returned; that the outer door to the pens was locked; that Crawford, with the assistance of the railway servants, drove his cattle into the enclosure; that it was not adapted for keeping cattle; and that they never had been kept there overnight before. There was evidence that young Crawford was told the cattle could only be left in the enclosure at his own risk, and that he should put them in the station park, but this he denied. It was proved the notch in which one of the moveable bars rested was rotten, and that it was at this point that the cattle had broken down the fence and got on to the line.

Upon 19th January 1888 the Sheriff-Substitute issued this interlocutor:—“Finds that on or about 4th June 1887 the pursuer booked 56 cattle at Larne for transmission to Stranraer by the steamship sailing between these places, and that the said cattle arrived safely at the harbour of Stranraer on the evening of the same day, Saturday 4th June: Finds that the cattle were immediately placed by the defenders' servants in the cattle-pens at the harbour: Finds that the pursuer stated to the station-agent at the harbour that he wished to forward the cattle by the cattle train to leave about ten o'clock p.m. that night for Newton-Stewart, whereupon the station-agent informed the pursuer that he could not book and forward the cattle until the pursuer should exhibit a licence for their transmission from the local authority: Finds that the pursuer sent his son Hugh Crawford to obtain such licence, and the pursuer himself left Stranraer by the passenger train at about 8·30 p.m.: Finds that the pursuer's son did not return to the harbour until after the cattle train had left Stranraer, and the cattle could not be forwarded that night: Finds that it does not appear from the proof whether a licence for the transmission of the cattle had been obtained or not: Finds the pursuer's son took upon himself the charge of the cattle, by taking them out of the pens and placing them in the loading-yard, where there was water, and where he laid down hay for them: Finds that the defenders' servants warned him against leaving the cattle in the loading-yard, and that if he insisted in leaving them there all night he did it at his own risk, to which he replied that it was ‘All right,’ meaning thereby that he accepted the risk: Finds that pursuer's son left the cattle in the loading-yard unattended during the night of the 4th and morning of the 5th of June: Finds that in course of said night or morning the cattle strayed upon the railway line, and that five were killed by a goods train, another was so severely injured that it required to be killed, and two more were seriously damaged: Finds that the pursuer's son Hugh Crawford is nineteen years of age, and that he has been in the habit for four years past not only of accompanying his father in bringing cattle from Ireland, but of bringing cattle by himself alone for his father, and of booking and transacting about their transmission on behalf of his father: Finds that in these circumstances, and in the emergency that arose through the nonproduction of the licence in sufficient time, for which the pursuer himself had made no provision, the defenders' servants were entitled to look to the pursuer's son as acting for him in his absence: Finds that the pursuer's son did so act for his father, and took upon him the risk attending the leaving of the cattle in the loading-yard, unattended, throughout the night: Finds that there is no evidence sufficient to inferliability upon the defenders for the damage to the pursuer's cattle: Therefore assoilzies the defenders from the conclusions of this action: Finds the pursuer liable in expenses,” &c.

The pursuer appealed, and upon the 7th July 1888 the Sheriff ( Macpherson) recalled the Sheriff-Substitute's interlocutor, and found “that the defenders received from the pursuer fifty-six head of cattle on an inchoate contract to be forwarded, if a licence was produced for their removal, to Newton-Stewart by the train leaving Stranraer harbour at ten o'clock p.m. of Saturday 4th June 1887, being the last train that night; that the defenders placed the said cattle in pens on their premises, and locked the outer gate, the only means by which the cattle could be brought out unless sent by the railway; that the said gate was never unlocked that night; that the pursuer's son, who had been sent for a licence, did not arrive at the station till after the said train had started; that on his arrival he was asked by the defenders' servant, Fisher, what he was going to do with the cattle, and replied that he would leave them where they were; that he was allowed to let the cattle pass from the pens into an immediately adjoining yard, fenced from the railway, in which yard was the only statutory supply of water for animals, and he proposed, although told by Fisher there might be some risk

Page: 442↓

if the cattle were taken out of the pens, and was allowed to leave them all night in the said yard, and was supplied with hay in it by the said Fisher, who received payment for the hay, though not apparently on account of the defenders; that no person watched the said cattle during the night; that owing to the decayed condition of one of the posts of the fence between the said yard and the railway, on a notch in which a cross spar rested, the said notch gave way, and the said spar fell, in consequence whereof, in the course of the night between the 4th and 5th of June, the said cattle, or some of them, strayed on to the railway, and five of them were killed by a goods train, and another was so severely injured that it had to be killed, and two more were seriously damaged: Finds that the said cattle were destroyed or damaged through the fault of the defenders, or their servants, for whom they were responsible: Therefore finds the defenders liable to the pursuers in damages; assesses the same at the sum of £35 sterling: Ordains the defenders to pay the said sum to the pursuer, with interest as prayed for, and decerns: Finds the defenders liable in expenses.”

The defenders appealed, and argued—The accident had occurred through the fault of the pursuer and not of the defenders. (1) The custody of the cattle was not in the railway company at the time the cattle broke down the fencing. When the cattle came from Ireland they were put in charge of the railway company for the purpose of being forwarded to Newton-Stewart, and the railway company fulfilled the obligation upon them by placing them in the proper pens in which they were quite safe. Then the pursuer went away leaving his son to take charge. The son was only 19 years of age, but he had frequently been in charge of cattle for his father before, and if he was incompetent for the charge that was his father's fault. When the son came too late to send the cattle to Newton-Stewart that night, the railway servants gave the charge of the cattle to him. He took them from the pens and put them into this inclosure, which was quite unfit for keeping cattle in for any length of time without a watchman, and the pursuer's son was told that by the company's servants, but he insisted on putting them in there. If any accident happened to them he was liable for it. (2) The railway company were not liable, even supposing the fence was in a rotten condition. Cattle were never allowed by them to be there without some person in charge, and if the pursuer put his cattle in this unsuitable place without anyone in charge, he was liable for any accident.

The respondent argued—The cattle were taken in charge by the railway company, and put in pens. If the pens were safe the cattle ought to have been allowed to remain there, but they were turned out and put into this yard. They were still under the custody of the railway company, and if the place was not safe without a watch, a watch should have been set. The fencing round the yard was proved to be unsafe and rotten. The railway company were bound to see that the fences along their line were proper and safe fences.

At advising—