Scottish Court of Session Decisions

Before 1873, Burnside Street was a public thoroughfare in the heart of Glasgow leading from Duke Street southwards to the New Vennel. The width of the street at its entrance off Duke Street was about 4 feet, but the street grew broader further south. On the west it was bounded by the Molendinar Burn. This burn as it flows through Glasgow to the Clyde is used as a common sewer; it is covered over during the greater part of its course through the city, but where it flows southward beside Burnside Street it is open.

In 1873 the North British Railway Company acquired the New Vennel and the southern end of Burnside Street for the purposes of their railway. They built a fence of sleepers across the street at its southern end, and this fence also crossed the burn. As it passed over the burn an opening was left at the foot of the fence through which the water flowed. About 50 feet further down from this fence the burn entered a tunnel or culvert through which it flowed till it reached the Clyde.

In 1892 the position of things was as follows—After one entered Burnside Street from Duke Street, there stood on the east side Alexander's Mill, in which were employed a large number of work-people. On the opposite side of the street from the mill the burn was fenced, the fencing having been erected by the proprietor of the mill. After passing the mill Claybraes was reached. Claybraes was a street or passage with workmen's dwelling-houses on each side; it ran parallel to Duke Street and entered Burnside Street on the east side. On the opposite side of Burnside Street from Claybraes a wooden bridge spanned the burn, forming the back entrance to the playground of Alexander's Public School. After crossing Claybraes there stood on the east side of Burnside Street a building which was the property of the North British Railway Company and was occupied by the Prisoners' Aid Society. In the hall of this building, which was entered from Burnside Street, a free dinner was given to poor children every day, sometimes as many as 200 dining there. Opposite this building the burn was unfenced for a distance of 46 feet from the wooden bridge before mentioned down to the railway company's fence running across the street and the burn. Between the Prisoners' Aid Society's building and the burn the street was in a neglected state, some of the paving stones having been removed, and children from the neighbouring streets were in the habit of using this part as a playground. Both Burnside Street and Claybraes were lighted by the Glasgow Police Commissioners. The city carts entered Claybraes in the morning by a gate at the eastern end of the street and removed the refuse. Burnside Street was also entered in the Register of Public Streets as maintained by the Board of Police.

Between 4 and 5 o'clock in the afternoon of 25th May 1892, Mary Gibson, a child of six years of age, while playing with some other children beside the burn opposite the building occupied by the Prisoners' Aid Society, fell into the burn. The burn, the usual depth of which was 6 inches, was on that date in flood and nearly on a level with the street, its depth being about 2 1 2 feet. The child was carried down by the current underneath the railway company's fence and onward into the tunnel, and was drowned.

Robert Gibson, the father of the child, raised an action in the Sheriff Court of Lanarkshire at Glasgow against the Glasgow Police Commissioners for £500 as compensation for the death of his child. He averred—“(Cond. 5) The said Burnside Street is a public thoroughfare, is managed,

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controlled, and lighted by the defenders solely. The said burn or sewer is also the property of the defenders, and although they knew that the same was unfenced or in any way protected for a distance of about 50 feet before it enters the said tunnel immediately below or to the south of Duke Street, that it was dangerous to the lieges, and especially to children, they took no means to fence the said east bank. It was the duty of the defenders to see that the streets and public thoroughfares of the city, including the said Burnside Street and the banks of the said burn or sewer, were put and kept in such a state as to prevent danger to the public, and to have the east bank of said burn or sewer sufficiently enclosed or fenced so as to prevent danger to children, many of whom use and play about the said Burnside Street. The defenders, or those for whom they are responsible, have caused to be erected on the east side of Burnside Street a wooden railing about 3 feet high, and extending from Duke Street to a point immediately opposite Clayhill Street, but between this point and the burn or sewer entering the foresaid tunnel it is unfenced and unprotected. Had they carried the said railing to the mouth of the said tunnel the accident to pursuer's child could not have happened.”

The pursuer pleaded—“(1) The said child having lost her life through the fault of the defenders in not fencing or enclosing the said burn, they are bound to compensate pursuer therefor. (2) The said street being a public thoroughfare, and under the control and management of the defenders, they were bound to keep and maintain same in a safe and secure condition, and to have the said burn or sewer properly fenced, and having failed to do so, pursuer is entitled to decree as craved, with expenses.”

The defenders pleaded—“(1) The action is irrelevant. (3) Separatim—the pursuer and his child, or either of them, having been guilty of contributory negligence, the defenders are entitled to absolvitor, with expenses.”

On 22nd November 1892 the Sheriff-Substitute ( Spens) allowed a proof before answer.

The pursuer appealed for jury trial. On the 17th December 1892 the Court dispensed with the adjustment of issues, allowed the parties a proof of their averments, and appointed the same to proceed before Lord Trayner. The proof showed the facts above narrated. The evidence regarding the exact manner in which the accident occurred was conflicting. One little girl, aged seven, deponed that while she and Mary Gibson were standing beside the burn the witness put her foot into the water, and on her telling Mary Gibson that the water was warm, the latter “put her hand in to see, and then she fell in.” Another girl, aged nine, deponed that she heard Mary Gibson say, “she would put her foot into the water to see if it was warm. I saw her do it. I turned my back, and I heard her cry, ‘Oh,’ and I turned round and she was in the water.”

Argued for the pursuer—The burn should have been fenced. No doubt whether or not a stream should be fenced was a question of circumstances, but in the present case this burn, abutting on a public street in a crowded locality, should have been fenced. The Police Commissioners were proprietors of Burnside Street, and were therefore liable as riparian proprietors for not having fenced the burn. The burn was used as a sewer, and was thus itself the property of the Police Commissioners. They were therefore bound to keep it in a safe condition. They were liable to the pursuer for the loss of his child— Kerr v. Lang, Anderson, & Company, June 1, 1877, 4 R. 779, Lord Shand's opinion, 785; Lang v. Bruce, February 1873, 11 Macph. 377, opinion of Lord Deas, 380; Harris v. Magistrates of Leith, March 11, 1881, 8 R. 613; Greer v. Stirlingshire Road Trustees, July 7, 1889, 9 R. 1069. There could be no contributory negligence where the matter was beyond the comprehension of the child. The owner was bound to make a dangerous place so secure that no injury would result from it to children of tender age— Findlay v. Angus, January 14, 1887, 14 R. 312; Cormack v. School Board of Wick, June 21, 1889, 16 R. 812. In Forbes v. Aberdeen Harbour Commissioners, January 24, 1888, 15 R. 323, Lord Justice-Clerk Moncreiff, p. 325, distinguished that case from a case of Robertson mentioned by him, holding that a boy of sixteen was able to take care of himself, but that it was otherwise with a boy of seven. The case of Fraser v. Edinburgh Street Tramways Company, December 2, 1882, 10 R. 264, was distinguished from the present, because here there was no proof that the child deliberately put itself into danger.

Argued for the defenders—At the place where the accident occurred there was no danger for which the Police Commissioners were bound to provide. Nobody had ever suggested that there was any danger or that the burn should be fenced, and no intimation of this burn being in a dangerous condition had ever been made to the defenders. No evidence had been led showing that it was a usual occurrence for this burn to be so much in flood as on the occasion in question. This burn as a rule was not really dangerous at all, and therefore did not require to be fenced— Fraser v. Magistrates of Rothesay, May 31, 1892, 19 R. 817. There was here contributory negligence on the part of the child or her parents. The child was not merely playing on the bank, but she courted the danger by putting her foot into the water. It could be seen that the burn was not in its normal condition, and the danger was manifest— Ross v. Keith, November 9, 1888, 16 R. 86; Rogan v. Maclennan, November 20, 1889, 17 R. 103.

At advising—