Scottish Court of Session Decisions

On 15th May 1896 David Shanks, a servant in the employment of John Cuthill, potato merchant, Airdrie, left Airdrie in charge of a horse and lorry laden with potatoes, to be delivered at, among other places, the Clydesdale Store, Mossend. The store is situated 5 or 8 yards from a bridge over the Caledonian Railway. On arriving at the store Shanks drew his horse and lorry up to the door. He then entered the store and went through the front shop towards the back shop for the purpose of seeing where the potatoes were to be placed. While entering the back shop he heard the whistle of an engine, which at that time was passing under the railway bridge. At the same moment the shopman in the front shop said to him that his horse had started off, and he ran out to secure it. The whistle had frightened the horse, which ran over the bridge and down the country road past Milnwood Row, Mossend, for about 100 yards. It was there caught by Shanks and another man. When the horse started off a boy about three years of age, a child of Mrs Elizabeth Pairlie or M'Ewan, wife of Hugh M'Ewan, miner, residing at 8 Milnwood Row, was playing by the hedge on tho other side of the road from the door of his father's house. On hearing some-one shout Mrs M'Ewan came out of her house, and, seeing the horse and lorry approaching, ran across the road to pick up the child. She had picked up the child, and was standing at the side of the road when the runaway horse swerved in passing her, and she was knocked down and injured. The horse was an ordinarily quiet and docile animal, and was accustomed to cart goods from railway stations without showing any fear of the starting or passing trains.

Mrs M'Ewan raised an action of damages for £250 against John Cuthill, and pleaded—“(1) The accident libelled having taken place through the fault or negligence of the defender or of his servant, for whom he is responsible, and pursuer having sustained the injuries condescended on in consequence thereof, decree should be granted as craved.”

After a proof establishing the facts above stated and the nature of the injury, the Sheriff-Substitute ( Mair) on 3rd March 1897 pronounced the following interlocutor:—“Finds (1st) that on 15th May 1896 the pursuer was knocked down by a horse and van belonging to the defender, and that she was injured (though not so seriously as she alleges) in consequence thereof; and (2nd) that the pursuer has failed to establish fault on the part of the defender or his servant, for whom he was responsible: Therefore assoilzies the defender, and decerns,” &c.

Note.—“After a careful consideration of the proof I have come without difficulty to the conclusion at which I have arrived, namely, that unfortunate as the accident was, it was an accident, and that neither the defender nor his servant were in any way to blame. [ Here followed statement of the facts.] That only leaves the question as to whether the defender's servant was in fault in leaving his horse unattended when he went into the store, and it is contended by the pursuer that he was, and that the defender ought to have supplied a boy to go with his servant for the purpose of attending to the horse in his unavoidable absence. Now, I am unable to agree with this contention when I consider the purpose for which the driver left his horse, and the very short time he was absent, nor do I think it necessary, provided the horse is quiet, thoroughly trained, and accustomed to the work, that there should be two persons in charge of each horse and lorry that goes out. The opinions of the judges in Shaw v. Croall & Sons, 12 R. 1186, are very instructive as to the duty of one in charge of a horse, and the case M'Gee v. Sproull, January 21, 1890, 6 Sheriff Court Rep. 116, is also founded on by the defender, and I think has some bearing on the present case.”

The pursuer appealed to the Sheriff ( Berry), who on 18th June 1897 adhered. The following note was appended to his interlocutor:—“After considering the proof I have come to be of opinion with the Sheriff Substitute that fault cannot beheld to attach to the defender or his servant in regard to leaving the horse and van unattended at the door of the Clydesdale Store on the occasion in question. It was frankly admitted at the argument on the appeal that nothing could be said against the character of the horse. The proof, indeed, shows that it was an ordinarily quiet and well-trained animal, and had been accustomed to work in connection with railway traffic. Had this been otherwise, and had the horse been a stranger to railway noises, the case

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might have been different, and it might have been regarded as a negligent act to leave the horse so near to a railway bridge without some-one to keep it from starting off. But in the circumstances I cannot think that there was negligence. The defender's servant, who had worked the horse for nearly a month before the accident, and had confidence in his steadiness, had, after drawing up at the door, gone into the store to see where the potatoes he was to deliver were to be put. For that, which was a perfectly legitimate purpose, he had got nearly into the back shop, when a railway engine at the bridge gave a whistle causing the horse to start off along the road, with the result that the pursuer, in trying to save her child, was knocked down and injured. I do not think that a carter is bound never to leave his horse alone even for the shortest time, and that he must always have someone to hold it should his duties call him away for a few moments. The defender's servant here seems to have acted in a usual way and with all ordinary caution in drawing his van up at the store aside from the line of the public road, and coming off it as he did in order to carry out the purpose of his call. In leaving the horse standing he did not anticipate, and to all appearance had no reason to anticipate danger. The defender has in my opinion been rightly assoilzied.”

The pursuer appealed, and argued—(1) Where a person leaves a horse unattended in a street or road, he does so at his risk, and is liable for any damage that may arise from his so doing— Illidge v. Goodwin, 1831, 5 C. & P. 190; M'Intosh v. Waddell, Oct. 31, 1896, 21 R. 80. Leaving his horse unattended was a breach of duty on the part of the carter, and was a relevant criminal charge— Her Majesty's Advocate v. Ross, April 14, 1847; Arkley, 258. The length of time during which the carter was absent was unimportant, as the risk was there all the time— Morrison v. MAra, March 6, 1896, 23 R. 564. (2) At any rate the defender was responsible in the special circumstances of this case. The place where this horse and cart was left was within a few yards of a bridge under which railway trains were liable to pass, and therefore a specially dangerous spot at which to leave a horse unattended. The carter also went, not merely into the shop, and through it to the back premises, where it was impossible for him to see his horse.

Argued for defender—(1) Merely leaving a horse and cart standing in the street does not necessarily involve the owner in damage for accident caused by the horse running away. There was no liability ex dominio. The principle on which the liability of the owner is founded is that he is bound to take precautions against any injurious act which he might reasonably expect the animal to commit— Shatvs v. Croall & Rons, July 1, 1885, 12 R. 1186. On principle it was not necessarily a fault to leave the horse and cart at a door in order to deliver part of the load. It would be a serious burden on small dealers if they had to send a boy round with every cart to hold the horse while the carter was delivering the goods. The case of Illidge was special, as the horse was a spirited animal and given to backing. In Morrison the carter was versans in illicito, as he was contravening a bye-law. In Mackintosh the only question was as to the issue to be allowed. (2) In the special circumstances of the case there was no fault on the part of the defender's servant. It was not a street in a crowded town, but a country road. The horse was accustomed to see and hear railway trains, so that there was no reason to believe that the whistle of a passing train would frighten it. The interlocutor of the Sheriff should be adhered to.

At advising—