Scottish Court of Session Decisions

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The Port-Glasgow and Newark Sailcloth Company brought an action against the Caledonian Railway Company for payment of £12,000 as damages for the destruction by fire of a flax store belonging to them.

The pursuers averred, inter alia, that the fire had been caused by a spark from a locomotive engine belonging to the defenders being carried through a door in the store; that the engine in question “was not of proper construction, in respect it was not fitted with what is commonly known as a ‘spark-arrester,’ or with any efficient mechanical contrivance to prevent sparks being emitted or thrown out therefrom,” and that in consequence they had sustained damage to the amount sued for.

The defenders denied these averments, and also averred that in view of the proximity of the store to the railway the pursuers were bound when any of the doors on the side next the railway were opened to have taken precautions to have secured the flax from taking fire, that no such precautions had been taken, that the pursuers' loss was covered by insurance, and that the amount thereof having already been paid to the pursuers they had no interest to maintain the action.

The pursuers pleaded, inter alia—“(2) The fire in question having been occasioned by the failure on the part of the defenders to use reasonable and proper appliances, precaution, and skill, in the use of their railway, the defenders are liable for the loss, injury, and damage thereby sustained.”

The defenders pleaded, inter alia—“(1) The said insurance companies having the chief interest in the subject-matter of this action, and control over the proceedings therein, ought to be ordered to sist themselves as pursuers. (4) Any loss which the pursuers may have sustained not having been occasioned by the fault of the defenders, they are not liable in any portion of the sum concluded for. (5) The said fire having been caused or materially contributed to by the negligence of the pursuers, they are not entitled to recover damages from the defenders.”

On 6th December 1890 the Lord Ordinary ( Kyllachy) repelled the first plea-in-law stated for the defenders, and allowed the parties a proof of their averments.

From the proof it appeared that the pursuers' store was situated on the north side of the defenders' railway from Glasgow to Greenock, at a distance of 29 feet 6 inches from the centre of the nearest line of rails. On the morning of 5th June 1890 the pursuers' foreman John Webster went into the upper storey of the store to sort flax. This storey was only a few feet above the level of the rails, and was not lighted by any windows. In order to get light for his work Webster opened a door on the side next the railway. He also left open a door on the other side of the store by which he had entered. While engaged in his work Webster heard a train pass, and almost immediately afterwards he observed that some loose flax which was lying near the door on the side next the railway was on fire. Attempts were made to extinguish the fire, but without success. The result of the evidence on this part of the case satisfied the Court that the flax had been set on fire by a spark or cinder from the defenders' engine No. 85.

On the question whether the defenders had failed to take proper precautions to obviate the danger of fire from the emission of sparks, the evidence showed that engines of the older types were generally fitted with a “grid” or netting of iron, known as a “spark-arrester,” which was inserted in the smoke-box below the chimney, and that No. 85 was furnished with no contrivance of this kind.

The engine in question was of a new type, having been designed in 1885 and built in 1888. It was not disputed by the pursuers that it was a thoroughly efficient engine, both as to power and speed, but they maintained that in leaving it without a “spark-arrester” the defenders had neglected to take what was a proper precaution against the emission of dangerous sparks. The mechanical arrangements adopted in No. 85 in order to promote perfect combustion were these—The fire-box, which was larger than in engines of an older pattern, was surmounted by a brick arch, and was furnished with a deflecting door-plate to deflect the air admitted by the door down into the fire. The ash-pan was fitted tight to the bottom of the boiler, and furnished with air-tight doors, in order that the admission of air into the furnace might be entirely under the control of the driver. The engine was also fitted with the then recently invented contrivance known as the “vortex blast,” the principle of which may be shortly explained. When locomotive engines were first invented it was found difficult to get a fire of sufficient power to burn in a small enough space, and to obviate this difficulty each locomotive was provided with a fanner. In process of time it was discovered that the work done by the fanner in creating a draught could be more effectively performed by discharging the waste steam into the smoke-box, a mechanical arrangement known as “the blast.” The jet of steam puffed into the smoke-box left a vacuum behind it, and so induced a draught from the furnace which carried the gaseous products of combustion from the smoke-box up the chimney. In the earliest form of “the blast” the exhaust steam was brought from the cylinders in a pipe, and was discharged into the smoke-box in a solid jet. In the improved form known as the “vortex blast,” the steam was discharged into the smoke-box through an annular opening, and it was found that this form of blast induced a much more effective draught, and kept the lower boiler tubes free from ashes, whereas with the solid blast these tubes generally got choked in the course of a long run. In the form of the “vortex blast, with which No. 85 was fitted, the exhaust steam after issuing from the cylinders was introduced into a wide chamber, and was then discharged

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through an annular opening into the smoke-box.

Several skilled engineers, called by the pursuers, gave it as their opinion that the vortex blast accelerated the draught and increased the chance of an engine emitting dangerous sparks; that it was all the more necessary that engines fitted with it should have spark-arresters, and that there was no difficulty in using a spark-arrester in an engine such as No. 85. They admitted, however, that they had never seen a spark-arrester used in an engine of the same pattern, and there was evidence to show that spark-arresters had been given up by most of the great railway companies in England. No evidence was adduced to show that since they had been given up more fires had been caused by sparks from engines.

For the defenders, Mr Drummond, who had been locomotive superintendent of the Caledonian Railway from 1882 to 1890, and had designed engine No. 85, deponed that the mechanical arrangements with which it was fitted were the best known means of promoting complete consumption of smoke and preventing the emission of sparks. In particular, he explained that the brick arch over the furnace stopped and threw back the larger embers which might be carried up in the flame, and burnt up the smaller ones, and that the combined effect of the wide chamber for the reception of the exhaust steam and the vortex blast was to produce a more equable and constant draught, and that the fire was in this way less disturbed, and the embers less drawn, than by the more intermittent action of the solid blast. He gave it as his opinion that engines of the pattern of No. 85 emitted sparks fewer in number and not larger in size than engines of the older type fitted with spark-arresters, and he had tested this opinion by examining the cinders left in the smoke-boxes of engines of both patterns. Mr Drummond also expressed the opinion that spark-arresters would, by their resistance to the draught, impair the efficiency of the new engines, and would at the same time rather increase than diminish the danger arising from the emission of sparks, because the increased resistance would necessitate a sharper blast, which would in turn lead to a greater disturbance of the fire. Corroborative evidence was given by a number of skilled engineers, including the locomotive superintendents of the London and South-Western, Midland, Great-Western, North British, and Caledonian Railways, and the assistant locomotive superintendent of the London and North-Western Railway.

The result of the evidence on this part of the case was that the defenders satisfied the Court that engine No. 85 was fitted with the best known appliances available in engines of that type for preventing the emission of sparks, while the pursuers failed to show that there was any sensible increase in the number or size of sparks emitted from engines of this class as compared with engines of the older pattern in which spark-arresters were used.

On 13th August 1891 the Lord Ordinary found that the fire in question was due to the fault of the defenders, and that the defenders were liable for the damage thereby caused, and in respect that parties were agreed that the damage should be assessed by an accountant, remitted to Mr J. M. Macleod, C.A., Glasgow, and granted leave to reclaim.

“ Opinion.—In this case I had an impression at the close of the proof that the weight of the evidence was, on the several points of controversy, in favour of the pursuers. But there being a good deal of complication, and also some conflict of testimony, I desired to have an opportunity of reading the printed proof. I have now done so, and the result is to confirm my original impression. I have therefore found that the fire in question was due to the fault of the defenders, and that they are therefore liable in damages, the amount of the damage being to be ascertained, if the parties fail to adjust it, by a remit to an accountant.

I do not think it necessary to go into details, but I may indicate shortly the view which I take of the evidence.

The parties were not at issue as to the law. Assuming that the damage was caused by sparks discharged from one of the defenders' engines, it was agreed that the defenders were liable, unless it appeared that they had used the best means known and practicable for obviating the danger; or otherwise, that the pursuers were (in the requisite sense) guilty of contributory negligence.

The first question, accordingly, is, whether the pursuers have proved that the fire was, as they allege, kindled by a spark from one of the defenders' engines. I am of opinion that they have. The evidence, I think, leaves little doubt that the flax in the pursuers' store was ignited by a spark from the defenders' engine No. 85, which passed the store about 11·51 a.m. on the morning in question, drawing the 11·20 express from Glasgow to Greenock. The defenders' case is, that the store was observed to be on fire at 11·48 before the engine in question passed, and also before the passage of another engine (No. 237) which figured a good deal in the evidence. And if this had been made out, the defenders must, I think, have succeeded; because the only other engine which passed at all near to the time of the fire was the engine No. 82, and it passed about 11·40, which is admittedly too soon for the occurrence. But I am satisfied that on this matter the two witnesses Neill and Stone, on whom the defenders rely, were mistaken. The evidence of the pursuers' witnesses Webster and Denholm makes it, I think, certain that the origin of the fire was not earlier than 11·50; and, moreover, if the store had been visibly on fire at 11·48, as Neill and Stone say, the fire could hardly, I think, have escaped the notice of the driver and stoker of the engine of No. 237, and of the guard and driver and passengers of the train drawn by engine No. 85.

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I must, therefore, hold it proved that the engine No. 85 did, on the occasion in question, discharge dangerous sparks, which reached the flax in the pursuers' store at a distance of about 29 feet from the rails; and I am further obliged to hold upon the evidence that that engine was and is in the habit of discharging dangerous sparks. There is a concurrence of testimony to that effect which cannot, I think, be explained away.

Now, that being so, a considerable onus is thrown on the defenders, and I am afraid they hardly discharge themselves of that onus by leading evidence to the effect that the engine in question was of the newest and best construction, and that its arrangements for complete combustion were so perfect that if sparks came from it which reached the ground aglow, ‘either the engine-driver was very much at fault, or the coals were very bad.’ That view is the view of Mr Drummond, the defenders' late locomotive superintendent, a gentleman of the highest skill and a most excellent and candid witness. It is also the view of Mr Adams, the patentee of the vortex blast, which was the leading feature of this class of engine. But the observation at once occurs that the defenders are as much responsible for the fault of the engine-driver as for defects in the construction of the engine. And accordingly the pursuers very naturally urge that the dilemma thus suggested is quite enough for them.

Apart, however, from any argmnentum ad hominem, I confess I am not satisfied on the evidence that the engine No. 85 and the other engines of its class are so constructed as to contain the best-known and practicable arrangements for preventing the emission of sparks. Differing in this respect from the older class of engines, they contain no ‘spark-arrester’ in their smoke-box; and assuming in their favour (what, however, is matter of dispute) that their vortex blast arrangement does not tend to increase the risk of sparks, or even that its associated arrangements tend to diminish that risk—still the sparks ex hypothesi issue, and issue of such size as to be dangerous; and that being so, I am not, I confess, satisfied upon the evidence that the spark-arrester if used would not at least have reduced that risk. Neither have I been convinced that its introduction would have materially interfered with the working of the engine or been in any other respect injurious. It is true that a majority of the great railway companies in England have ceased to use ‘spark-arresters.’ But they are still largely used; and having given my best attention to the views of the defenders' witnesses, I have been unable to see sufficient reason why they should not continue to be used, or why, if used, they should not go at least a considerable way to obviate the risk of fire.

It only remains to consider the question of contributory negligence, and here I am bound to say that the situation of the pursuers' store, and the arrangements of the building, were certainly not such as to minimise the risks arising from sparks thrown by passing engines. The store was only 29 feet from the railway. There were doors on the side next the railway, and there being no window in the roof (as there might have been) it was sometimes necessary (as on the occasion in question) to open one of these doors for the purpose of obtaining light. All this was certainly the reverse of cautious. But, on the other hand, I do not know that the pursuers were bound—because of the risk of the negligent discharge of sparks from the defenders' engines—to forego the full use of their ground, or to depart from what they considered the most convenient arrangements for obtaining access to and for lighting their flax store. In other words, I doubt whether it can be imputed to them as fault that they took their chance of the defenders doing their duty. But in any case, the law—as I understand it—is, that in questions of contributory negligence causa proxima non et remota spectatur, and it is impossible to say that the position or arrangements of the pursuers' store formed in any proper sense the direct or proximate cause of this fire. The defenders could certainly, if I am right, have by ordinary care avoided inflicting the injury to which the pursuers, perhaps somewhat rashly, exposed themselves, and, according to the authorities, that is sufficient. See Radley v. L. & N.-W. Ry. Co., L.R., 1 App. Cases, 754, 759; Rooney v. Allans, 10 R. 1224; Florence v. Mann, 18 R. 247.

On the whole, therefore, I consider that my judgment must be for the pursuers, and I have only to add that I am not able to see that the fact of the pursuers being covered, or nearly covered, by insurance makes any difference in their position. It may be that they are really suing on behalf of the insurance companies, but that is after all merely matter of process, and in the present case, where there is no question of responsibility for costs, I do not see that anything could be gained by sisting the insurance companies as pursuers.

On the whole, therefore, I find, as I have said, for the pursuers; and as the parties are agreed that the amount of the damages shall be settled by a remit to an accountant, I shall make the necessary remit to Mr J. M. Macleod, C.A., Glasgow, whose report will no doubt be presented early in the ensuing session.”

The defenders reclaimed, and argued—(1) It was not proved that the fire had been caused by a spark from one of the defenders' engines. (2) Assuming that to be proved, the defenders were not liable, as they were not proved to have been in any way negligent. Railway companies had authority to bring fire into the neighbourhood of combustible articles, and they were not liable for any damage which resulted from the exercise of their statutory power, unless it was proved that the damage was due to their having neglected some reasonable precaution— Aldridge v. Great Western Railway Company, 1841, 3 Manning & Grainger, 515, per Chief-Justice Tindal. The precautions demanded

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of them must be consistent with their carrying on their business in a reasonable way, and hence in improving their engines railway companies were not bound by the condition that the improved engines must be equally safe in the matter of sparks as the less efficient engines in use— Rex v. Pease, 1832, 4 B. & A. 30; Jones v. Festiniog Railway Company, 1868, L.R., 3 Q.B.D. 773; Vaughan v. Taff Vale Railway Company, 1868, 5 H. & N. 679; Smith, 1870, L.R., 5 C.P. 98, aff. 6 C.P. 14; Murdoch v. Glasgow and South-Western Railway Company, May 17, 1870, 8 Macph. 768. The fact that the defenders had constructed engine No. 85 without a spark-arrester was no proof of negligence on their part, as that appliance had gone generally out of use— Wisely v. Aberdeen Harbour Commissioners, February 2, 1887, 14 R. 445. It was not proved, moreover, that engines of the new type threw more sparks than the older engines which were furnished with spark-arresters. The negligence of which the pursuers complained was that engine No. 85 had no spark-arrester, but they had failed to prove that a spark-arrester was necessary or advantageous in an engine of that type, or that it could be used without impairing the efficiency of the engine. The weight of the evidence supported the defenders' case that it was neither necessary, advantageous, or practicable. (3) Assuming the defenders case to have failed on both the points already argued the pursuers could not recover damages as they had been guilty of contributory negligence. A person who possessed property of a highly combustible character in close proximity to a railway was bound to take ordinary precautions against fire, or at all events to use his property in such a way as not to increase the danger of fire, but the pursuers had done just the reverse. They had created a cross draught by opening doors on each side of the store, and had carelessly left loose flax lying near the open door on the side next the railway. In order to get the benefit of the cases quoted in the Lord Ordinary's note the pursuers must show that the danger was known to and disregarded by the defenders. (4) The pursuers had been already indemnified, and therefore had no title as they had no interest to sue— Bradburn v. Great Western Railway Company, 1874, L.R., 10 Exch. 1.

The pursuers argued—(1) The cause of the fire was a spark from the defenders' engine No. 85. (2) The duty of a railway company was to take the best known and practicable means of obviating the danger of fire— Ford v. London and South-Western Railway Company, 1862, 2 F. & F. 730; Vaughan v. Taff Vale Railway Company, supra; Murdoch v. Glasgow and South-Western Railway Company, supra, per Lord Neaves. This the defenders had failed to do, as they had neglected to furnish engine No. 85 with a spark-arrester. For twenty years that appliance had been looked upon as the best means of obviating the danger of fire from sparks, and there was accordingly a heavy onus upon the defenders to show that it was not necessary, or was unworkable in engines of the new type— Freemantle v. London and North-Western Railway Company, 1861, 2 F. & F. 337, and 31 L.J., C.P. 12; Piggott v. Eastern Counties Railway Company, 1864, 3 C.B. 229. That onus had not been discharged, but the balance of evidence favoured the view that the spark-arrester was necessary in engines of the type of No. 85, and could be used without impairing their efficiency. (3) The pursuer had been guilty of no contributory negligence. They had been using their property in the ordinary way, and were entitled to rely on the defenders taking all the precautions in their power to obviate the danger of fire— Radley v. London and North-Western Railway Company, 1876, L.R., 1 App. Cas. 754, per Lord Penzance, 759. It was not enough for the defenders to show that the pursuers knew of the danger, they must also show that they had taken the risk of it— Smith v. Baker & Sons, L.R., App. Cas. 1891, 325. (4) The fact that the pursuers' loss was covered in whole or in part by insurance in no way barred the present action— Delaurier v. Wyllie, November 30, 1889, 17 R. 167; Simpson v. Thomson, December 13, 1877, 5 R. (H. of L.) 40, per Lord Chancellor Cairns, 42.

At advising—