Scottish Court of Session Decisions

This was an action of damages by Mrs Mary Lyon or Pirie, widow of James Pirie, Aberdeen, against the Caledonian Railway Company, for the death of her daughter Miss Elsie Pirie, which occurred while she was travelling in one of the defenders' trains between Aberdeen and Carlisle.

The pursuer averred that her daughter (who was thirty-two years of age and her principal support) on the 19th of February 1889 took a ticket from Aberdeen to London, and that while the train was nearing Beattock station Miss Pirie, feeling sick, put her head out of the window of the compartment in which she was travelling; and that she was struck on the head by a mail bag which was suspended on the standard of the apparatus erected at the side of the railway for transferring the mail bags to the receiving net of the postal van. The pursuer further averred that Miss Pirie was rendered insensible by the blow, that she remained with her head out of the window, and that at Ecclefechan she was again struck by the mail bag suspended at that station, and that she died on the following morning of the injuries she had received.

“The receiving apparatus of the railway carriage conveying the letters consists of a strong iron frame fastened to the side of the van, to which is attached a net. This frame is kept close to the side of the van, except when lowered from the inside when a receiving station is being approached. The pouch containing the letter bags to be received is a strong leathern bag, measuring when full 22 inches long, 22 inches deep, and 18 inches thick, the weight when full being about 55 lbs. It is suspended by a leather strap 13 inches long from the arm of a revolving iron standard fixed on the side of the line, 4 feet 8 inches to 5 feet from the outside rail, the arm being 10 feet above the rail level. A raised platform enables the post-office official to suspend the pouch from the arm of the standard, which he then turns round from its normal position with the arm parallel to the rails to the position at right angles to the rails in which the pouch is to be caught by the net projecting from the side of the mail van. When the pouch is thus hanging in order to be caught, the clearance between the sides of the carriages and the pouch hanging from the standard is from 8 to 10 inches, and the pouch is on a level with the windows of the carriages. The apparatuses on which the mail bags were suspended at Beattock and Ecclefechan were erected as described in the preceding article, and were thus exceedingly dangerous to passengers. The apparatuses were so erected by the defenders, or by others for whom they are responsible, and at any rate they were erected upon the railway belonging to them, and by their authority and with their consent. The railway company have a contract with the Post-Office for the carriage of the mails.”

The defenders in answer “admitted that they have a contract with Her Majesty's Postmaster — General for the carriage of mails, dated in 1873. Quoad ultra denied, and explained that by the Act 1 and 2 Victoria, c. 98, and 36 and 37 Victoria, c. 48, the defenders are under statutory obligation to carry the mails, and to afford all reasonable facilities for the receipt and delivery of mails at any place on their railway which the Postmaster-General may require, and to obey all reasonable regulations which the Postmaster-General shall, in his discretion, from time to time give or make. The apparatus referred to is supplied and erected by the Postmaster-General at his sole cost and expense, and it neither belongs to nor is it under the charge of the defenders. It was erected at Beattock, Lockerbie, and Ecclefechan about twenty

Page: 975↓

years ago, the then existing contracts between the Postmaster-General and the defenders being dated respectively in May and December 1867. Copies of these are produced and referred to. There is no difference, so far as the defenders are aware, between the apparatus at present in use at Beattock and Ecclefechan and the apparatus at Lockerbie, or at any other station on the defenders' system. The Postmaster-General has in use a similar apparatus on all the principal railways in the kingdom, and has used the same (with improvements in construction made from time to time) for upwards of twenty years, and this is the first time that an accident to a passenger was ever ascribed to the use of such apparatus.

The defenders pleaded—(2) No fault. (3) Contributory negligence on the part of the deceased.

The case was tried on the 21st and 22nd March 1890 before Lord Adam and a jury, the facts stated in the above narrative were proved, and the jury after an absence of three hours returned a verdict by a majority for the defenders.

On 16th May a note was presented to the Lord President by the pursuer, stating that since the trial she had “discovered that the foreman of the jury, in announcing that they found for the defenders by a majority, made a mistake, the real state of matters being that the jury were equally divided.”

The pursuer prayed his Lordship “to move the Court to grant a rule to show cause why the verdict in this case should not be set aside and a new trial granted; and in the meantime to order all further proceedings to be stayed.”

Affidavits were produced by the foreman of the jury, by the juryman whose vote was wrongly counted, and by another of the jury who sat next the latter.

In his affidavit William Sinclair, the foreman of the jury, deponed as follows—“I was foreman of the jury in the action at the instance of Mrs Pirie against the Caledonian Railway Company. At the end of nearly two hours the jury were six to six. One member of the jury said he was of opinion that the Caledonian Railway Company did not foresee any danger, or something to that effect. He was told by some that in that case he ought to give his vote in favour of the company, whereas he had been voting for the pursuer. The opinion of the Judge was taken. I put the question, which had been committed to writing, to the Judge, as follows—‘A gentleman of the jury is of opinion that the railway company did not see the danger. Is he bound to vote one way or the other.’ The Judge said that if that was his opinion on the facts he was bound to vote for the railway company. The jury then retired, and the vote was taken again, and this juryman still voted for the pursuer, and we were still six to six. The jury were then recalled into Court, and the Judge explained that his answer had reference to the previous charge, and I then informed him that it was so understood, and that the gentleman in question still declined to vote for the railway company. The Judge said he must be a very stubborn juryman, but he could not compel a juryman to record his vote one way or the other. It wanted just five minutes from the expiry of three hours, and we continued in the jury-box. During that time some one whispered to me from behind that the gentleman in question had given in. I do not remember the words in which the information was conveyed, or who informed me, but I was led to understand he had given in, and at the end of the three hours I stated that the jury returned a verdict for the defenders by a majority. I was sitting on the extreme right, looking from the jury-box, of the seat next to the back seat, and the juryman in question who had the difficulty was sitting on the extreme left of the back seat, and I had no communication with him while in the box during the last five minutes, except that while the information was being whispered to me he seemed to nod, by which I understood that he signified his approval of what was being told me. The vote, counting the vote of the said gentleman for the defenders, was seven to five.”

Mr James Duncan, the juryman whose vote was alleged to have been wrongly counted, deponed—“After the jury had retired, the vote was taken several times, and we found we were six to six. While we were discussing the matter, one of the jurymen said that, as I was of opinion that the railway company did not see this danger, I ought to vote for them instead of voting for the pursuer, as I had been doing. It was then resolved by some of the jurymen that the question should be put to the Judge, whether my opinion being as above, I was bound to vote one way or the other. The Judge said that if my opinion was that the railway company did not see or foresee the danger, then I ought to vote for them. The jury again retired, but my opinion still was that the railway company was liable, and on taking the vote, I again recorded my vote for the pursuer. We were recalled into the Court in a few minutes, and the Judge explained that his answer to the question put by the foreman had reference to his previous charge, and that the word ‘see’ meant ‘foresee.’ The foreman said it was so understood, and that I still declined to record my vote for the defenders. The Judge said he could not compel a juryman to vote one way or the other, but that I must be an extraordinary juryman. We sat about five minutes in the jury-box, at the end of which time the three hours were up, and the foreman then stood up and said that the jury had found for the defenders by a majority. During the time we were in the box I did not speak to anyone, except that I remarked to Mr M'Laren that they should go on and get the matter finished in some way, or something to that effect; and I certainly never consented to give my vote for the railway company, either by word or sign, and would not have consented, in any event, as it was against my idea of justice. When the Judge said he could not compel a juryman to vote one

Page: 976↓

way or the other, I understood that a juryman could not be compelled to vote, and that therefore my vote was discounted, and the verdict arrived at by the votes being six to five. After the Judge's ruling, and what he said when we came back to the box, I felt myself in an awkward position, because, according to my views of justice, I held the railway company liable, as I considered the apparatus was dangerous, and I could not have satisfied my conscience if I had voted in their favour. During the time the jury were in the box I sat at the left-hand end of the back seat. Mr M'Laren sat next me, on my right hand looking from the jury-box, and the foreman sat at the right-hand end of the seat in front of me.”

Mr Duncan M'Laren, a juryman who sat next to Duncan, deponed, inter alia—“During that five minutes the juryman in question next me on my left did not tell any one, so far as I heard, that he had given in, and he could not have told anyone without my seeing and hearing him. He did not signify either by word or sign, so far as I saw, that he had changed his mind. He made some remark to me, but I do not recollect what it was, only I am certain that it had nothing to do with his having changed his mind. I did not hear it whispered amongst the jury that he had given in. I had no communication with the foreman at all during that five minutes. At the end of the five minutes, the foreman stood up and returned a verdict for the defenders by a majority. The reason why I did not call the verdict in question was that I thought the vote of the man next me on the left had been passed over on account of the Judge's ruling, and that the verdict was arrived at by a vote of six to five. When I found out that a verdict could not be arrived at by a vote of six to five, I called upon the pursuer's agent and asked what the vote was, and he said it was seven to five. I told him it was not, and explained what took place as above. While in the jury room, Mr Duncan informed me that although he thought the company may not have foreseen the danger, that still the apparatus was dangerous, and he led me to understand that he thought they ought to have seen it.”

The pursuer moved for a new trial (1) under Statute 55 Geo. III., c. 42, sec. 6, “as essential to the justice of the case;” (2) because the verdict was contrary to evidence.

After hearing counsel the Court granted the rule.

The argument at the discussion was confined to the first of the two grounds above stated, viz., that it was “essential to the justice of the case.”

Argued for the defenders—The question was, whether it was competent ex post facto to receive evidence at the hands of the jury of anything which they might have done to enable them to arrive at their verdict. Upon this matter the authorities both in this country and in England were at one, that it would open the door to fraud if such a course were followed. Juries might be amenable to bribes or to outside influence, and verdicts might be thus changed, and injustice might follow. In England since 1805 it had been held as a settled rule that no new trial would be granted on amendments like those here and supported by affidavits — Davies v. Taylor, 2 Chitty, 268; Rex v. Mosier, 6 Maule & Selwyn, 366; Jackson v. Williamson, 2 Durnford & East's Term Reports, 281; Owen v. Warburton, 1 Bosanquet & Puller, 326; Straker v. Graham, 4 Meeson & Welsby. These cases showed that the point which the pursuers sought to raise was quite settled against them in England. But the grounds upon which these decisions rested were equally applicable to Scotland as the decisions did not rest upon any technicalities of English law. In this country the point was authoritatively settled by Stewart v. Fraser, 5 Murray (Jury Court Cases) 166; Fullarton v. Caledonian Railway Company, November 2, 1882, 10 R. 70. In the present case, even if the matters alleged in the affidavits were proved habili modo, they were not relevant because they did not involve that the juror whose note was in dispute did not at the last give in, and assent to the opinion of the majority, as announced by the foreman of the jury.

Argued for the pursuer—The circumstances in the present case were so very special, that the rules applicable to jury trials could not be appealed to. Thus when the jury after retiring returned to Court with a prepared verdict, then of course it would be impossible to get behind that by any such procedure as was being adopted here. But in the present case the verdict was arrived at in the jury-box, and under circumstances which contributed to the mistake which had occurred. If a new trial was refused the greatest injustice would result to the pursuer. The Court had the power in a case like the present to order a new trial under the provisions of the Act of 1815, 55 Geo. III., c. 42, sec. 6 (which instituted Jury Trial in Scotland) for any “cause essential to the justice of the case.” This was “a cause essential to the justice of the case.” Authorities cited by defenders supra.

At advising—