Scottish Court of Session Decisions

Mrs Sarah Mulholland or Warwick, widow of Andrew Warwick, carter, Dumfries, raised an action in the Sheriff Court at Dumfries against the Glasgow and South-Western Railway Company and the Caledonian Railway Company, in which she asked the Court to grant decree against the defenders jointly and severally, or otherwise severally, for £500 damages, or otherwise in the event of its being found that she had a claim only under the Employers Liability Act 1880, to grant decree against the defenders the Glasgow and South-Western Railway for £140, 8s.

The pursuer made, inter alia, the following averments:—The premises of the Dumfries Gas Commissioners were situated 400 yards from the goods yard of the Glasgow and South-Western Railway, and were connected therewith by a line of rails belonging to the Commissioners, laid along the public street. The Glasgow and South-Western Railway had contracted with the Gas Commissioners to haul to the premises of the latter waggons of coal consigned thereto, and arriving at Dumfries by the lines of either the Glasgow and South-Western Railway or the Caledonian Railway. The precise terms of the contract were unknown to the pursuer. The mode of haulage was as follows:—Two waggons coupled together with a man in charge of each, and drawn by three horses, each attended by a driver, were taken along the line at one time. The line of the rails was level for about half the distance, then it dipped down to within a few yards of the gate of the gas-works, and thereafter there was a sharp ascent up through the gate and round a corner into the gas-works. When the two waggons

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were brought to the place where the dip commenced they were uncoupled. The first was drawn by the horses down the descent, and then at a trot up through the gate into the gas-works. The other waggon followed more slowly by its own weight, and was gradually brought to a stand where the descent ended, the horses returning for it after the first waggon had been deposited in the gas-works.

On 22nd October 1895 Andrew Warwick, who was a carter in the employment of the Glasgow and South-Western Railway Company, was ordered by the foreman of the goods yard of the company to assist in the haulage of waggons of coals from the goods yard to the gas-works. He was put in charge of the first waggon. When the two waggons arrived at the descent before mentioned they were uncoupled, and the first was dragged down the slope by the horses and up through the gate into the gas premises at a trot. As they turned the corner at the gate those in charge of the horses found that the line was obstructed, and they pulled up suddenly by making the horses swerve from the line. The second waggon meanwhile descended of its own weight after the first. Patrick Burns, the man in charge, seeing that the first waggon had come to a standstill, attempted to stop the second waggon, by applying the brake, but the brake was defective and would not work. Because of this, the second waggon dashed into the first, and Andrew Warwick was killed. “(Cond. 13) The said accident was caused by the negligence of the defenders. In the conduct of coal traffic it is the usual custom of the Caledonian Railway Company and other railway companies, for convenience in the loading and unloading of coal, to send their waggons, or permit them to be taken, beyond their own lines on to the lines of other railway companies, and on to lyes or private lines or sidings belonging to consignors or consignees of coal, without any express contract or charge being made in respect of such use of the waggons. It is for the advantage of the railway companies to give this accommodation, as otherwise the trouble and expense of transhipping the coal from one waggon to another would be so great as to prejudice the trade of any railway company which refused it. In these circumstances it is the duty, and is the practice, of the Caledonian Railway Company and other railway companies to take care that waggons of which such use is given are in proper working order, with a view to the safety of those who may have occasion to use and handle them in the loading, unloading, and delivery of the coal. As regards the coal conveyed by the defenders, the Caledonian Railway Company, for the Dumfries Gas Commissioners as consignees, it is and for many years has been the regular practice for the said defenders to give the use of the waggons belonging to them, in which coal has been carried from coal pits on their system of railway to Dumfries station, for the conveyance of the coal from the station to the gas-works without necessity for any transhipment, the haulage being performed by the defenders, the Glasgow and South-Western Railway Company, under their contract before mentioned. And in pursuance of this practice the defenders, the Caledonian Railway Company, gave use of the foresaid two waggons, Nos. 34,547 and 59,394, on the occasion in question. It was accordingly their duty to take care that the said two waggons were in proper condition for use, and, in particular, that the brakes thereof were of proper construction and in good working order; but they negligently failed to perform this duty, the brakes of both waggons, and in particular of the waggon in charge of Burns, having been unserviceable and out of proper repair, as set forth in article 12. Explained, that with a view to handing over said waggons for such haulage, it is the practice, by arrangement between the two defenders, for coals coming by the Caledonian Company's line to be booked through for delivery, not at their own station, but at the station of the Glasgow and South-Western Company at Dumfries; and not merely at the station, but at the very point beside their gate at Leafield Road where the haulage along the tramway is to commence. The greater number of waggons so hauled are Caledonian waggons, as most of the Gas Commissioners' coals come by their line.”

The pursuers pleaded, inter alia—“(3) The defenders, the said Caledonian Railway Company, being the owners of the said insufficient and defective waggons, and having negligently allowed them to be used in their defective condition on the occasion in question, are liable to the pursuer in compensation for the loss sustained by her through said accident.”

The defenders, the Glasgow and South-Western Railway Company, pleaded, inter alia—“(7) The said defenders not being owners of the waggons in question, and their contract in relation thereto being merely for haulage and not for carriage as common carrier's, the waggons being the property of the Caledonian Railway Company, the Caledonian Company and the Gas Commissioners are responsible for their condition, and the South-Western Company are not liable for any accident occurring through any defect in them.”

The defenders, the Caledonian Railway Company, pleaded, inter alia—“(1) The averments of the pursuer are irrelevant and insufficient to support the conclusions of the action. (4) The waggons condescended on not being in the possession or under the control of these defenders when the said accident occurred, they should be assoilzied. (5) The waggons condescended on having been in the possession and under the control of the other defenders, the Glasgow and South-Western Railway Company, when the accident occurred, they are alone responsible for the sufficiency of the said waggons, and these defenders should be assoilzied.”

On 1st December 1896 the Sheriff-Substitute ( Campion) allowed a proof.

The pursuer appealed for jury trial to the

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Court of Session, and proposed a separate issue for each defender, both issues being in the following terms—“Whether the pursuer's husband the deceased Andrew Warwick was, on or about 22nd October 1895, killed through the fault of the defenders, to the loss, injury, and damage of the pursuer.”

The Caledonian Railway Company objected to any issue so far as they were concerned, and argued—The action as against them was incompetent. The waggons might be theirs but no liability arose merely ex dominio— Campbell v. Kennedy, Nov, 25, 1884, 3 R., opinion of Lord Neaves, p. 125. Their liability ceased when the waggons left their line. It was not their work that was being done when the accident happened; it was work performed, according to the pursuer's own averment, under a contract between the Glasgow and South-Western Railway and the Gas Commissioners. The accident happened subsequent to the delivery of the coal in Dumfries by the present defenders. The waggons were passed on to the Glasgow and South-Western Railway Company for their convenience, who were therefore responsible for them, and the accident happened on the private rails of the Gas Commissioners. In the case of Heaven, infra, the circumstances were quite different from the present, and Cotton, L.-J. Bowen, L.-J., did not concur in the dictum of Brett, M.-R., referred to in the rubric of that case.

Argued for the pursuers—The action was relevant as against the Caledonian Railway Company. The case was similar to Heaven v. Pender, 1883, L.R., 11 Q.B.D. 503. In that case the dock-owner had no contract with the person injured, but he supplied a staging that he knew was going to be used, and therefore he was held liable. In the present case the Caledonian Railway Company supplied defective waggons which they knew were going to be used for a special purpose. Both the railway companies were interested in seeing that the coal was conveyed to the gas-works, and there was a distinct averment that the Caledonian Railway Company benefited thereby, and agreed that their waggons should be used for the purpose. They were therefore legally bound to see that they were in a safe condition— Horn v. North British Railway Company, July 13, 1878, 5 R. 1055; Robinson v. John Watson, Limited, November 30, 1892, 20 R. 144.