Scottish Court of Session Decisions

This was an action raised in the Sheriff Court at Dumfries by Joseph Bell, farmer, Dinwoodie Mains, Lockerbie, against the Caledonian Railway Company, in which the pursuer concluded for £65 in name of damages on account of injuries sustained by a horse belonging to him, which he alleged were caused by the negligence of the defenders.

The circumstances under which the horse met with the injuries complained of are set forth in the following findings in fact, which were made by the Sheriff-Substitute ( Campion) in his interlocutor, and were ultimately adopted in the interlocutor pronounced by the Court of Session on appeal:—“Finds (1) that the pursuer is tenant of the farm of Dinwoodie Mains, which lies partly on one side and partly on the other side of the defenders' main line of railway between Glasgow and Carlisle; (2) that at Dinwoodie Station, where the said line crosses the public carriage road, there is a level-crossing which was constructed by the defenders under the authority contained in their special Act of Parliament; (3) that on 8th February 1901 John Watson, one of the pursuer's servants, was engaged carting on said farm and had occasion to cross the said level-crossing; and (4) that as he was leading his horse across the line the toe of the shoe on the horse's near forefoot was caught between the rail and the chair on which it rests and became fixed, so that the horse was thrown to the ground and was unable to extricate its foot until forcibly relieved, when it was

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found to be seriously and permanently damaged.”

The pursuer averred—“(Cond. 5) The pursuer avers that the accident was caused through the fault, negligence, or carelessness of the defenders or their servants, and for which they are responsible in that the wedge or key used for the purpose of keeping the rail in position where the accident happened had not been driven sufficiently in between the chair and the rail, whereby an open space or crevice was left between the chair and rail in which the horse's foot was caught. (Cond. 6) The defenders are bound to uphold and maintain the roadway at the said level-crossing in a proper condition for traffic and the safe use thereof by the public, and in particular they were bound to see that the said wedge or key was in proper position and that there was no opening or other defect in the roadway at the level-crossing in question.”

The defenders in answer averred that the level-crossing was maintained in the usual condition, and that it had on the date in question been examined by their servants about an hour before the accident and found to be in good order.

The pursuer pleaded—“(1) The defenders being bound to maintain the roadway at the said level-crossing in a proper condition for the safe use of the public, and having failed to do so, are responsible to the pursuer for the damages sustained by his horse in consequence of the defects therein. (2) The pursuer having suffered damages through the negligence of the defenders or their servants is entitled to reparation from the defenders therefor.”

The defenders pleaded—“(1) The averments of the pursuer, so far as material, being unfounded in fact, the defenders ought to be assoilzied. (2) The accident to the pursuer's horse not having been caused by the negligence of the defenders or their servants the defenders ought to be assoilzied.”

Proof was allowed and led.

The pursuer deponed—“About eight o'clock on that morning (viz., 8th February 1901) an accident happened to one of the horses. … I went across to see what was the matter. I found the horse's toe of the near forefoot caught between the rail and the chair. Between the rail and the chair there is a space which ought to be filled up with a wooden key or wedge. There was a key there but it was not driven home. It was not half-way in. Cross.—I have seen keys come out in very dry weather, but this was a moist season. This key had never been driven fully in. It was firmly wedged in the hold which it had; it was frozen in. It could not have been through all the way that morning. A man tried to push it out with his foot and could not move it.”

David Johnstone, station-master, Dinwoodie, examined for the pursuer, deponed—“There must have been some space between the chair and the rail to allow it to get in. I noticed the position of the key after the horse had been relieved—it had not been fully driven home; an opening of about an inch, off and on, was left. Cross.—At some seasons of the year the keys come out easily, and platelayers are employed to see that they are kept in position. I have seen them out of position. Trains are liable to shake them out, and in dry weather they may shrink and fall out. A platelayer goes over the line twice a-day. I am certain that he goes over the Dinwoodie length twice a-day. I do not remember seeing him on the morning on which the accident occurred. There is no other precaution we could take to keep the keys in than by sending the platelayer along to inspect them. Between seven and nine o'clock that morning two trains had passed on the up line on which this accident had occurred and one on the down line. Reexamined.—Both of these trains passed after the platelayer had been over the line, between seven and nine o'clock. They both passed before the accident. I am quite clear about that.”

George Brown, permanent-way inspector of the defenders, examined for the defenders, deponed—“The keys get loosened by the traffic and fall out occasionally. It is the duty of the platelayer to replace them. The fact that a key is out for a little bit does not endanger traffic. There are four men employed at Dinwoodie to look after two miles of double line. Their duty is to look the road twice a-day and keep the permanent way in repair. That is the only precaution which the Company can take to keep the keys in their place.”

James Johnstone, platelayer, examined for the defenders, deponed—“On the morning of the accident I passed the crossing about five minutes before eight o'clock. I looked at it particularly. This key could not have been anything like half-way out without me seeing it. There were trains passed between the time I looked at the crossing and the occurrence of the accident. I came back between nine and ten o'clock, after the accident, and trains had passed in the interval. I examined the crossing in the afternoon. I saw then that the key was shifted a little out of its place. As nearly as I could judge it was about an inch out. It is quite possible that the shaking of a train would shift the key a little. In either frosty or warm weather the keys shift easily. It is my duty to look at these things particularly and see that they are always put into their place. We frequently find keys out altogether, and we pay particular attention to them for that reason. … We pay more attention to the keys on the level-crossing than on other parts of the railway because you cannot see them so easily and have to be more particular. There are no special instructions with regard to them. Keys are not liable to come fairly out on a crossing, but they will shift a little with the traffic. On a frosty morning and with the key dried up it might quite easily shift with two trains passing over it. There is more dampness about a crossing than the rest of the line if you go back from the edge of the rail.”

On 7th August 1901 the Sheriff-Substitute ( Campion) pronounced an interlocutor

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whereby, after pronouncing the findings in fact 1, 2, 3, and 4, which are quoted supra, he found further as follows:—“Finds that said accident was caused through the neglect of defenders or their servants to see that the wedge or key used for the purpose of keeping the rail in position where the accident happened had not been driven sufficiently in between the chair and the rail, whereby an open space or crevice was left between the chair and the rail in which the horse's foot was caught: Finds further, that said accident occurred in consequence of defenders' failure to maintain, as they were bound to maintain, the roadway at the said levelcrossing in a proper and safe condition for public traffic, and that they are liable to pursuer for the loss and damage sustained by him by the injury thus occasioned to his horse.”

He assessed the damages due to the pursuer at £65.

The defenders appealed to the Court of Session, and argued—The defenders could not be held liable unless they had failed to take reasonable precautions to keep the level-crossing safe— Port-Glasgow and Newark Sailcloth Company v. Caledonian Railway Company, February 21, 1893, 20 R. (H.L.) 35, per Lord Chancellor, at p. 36, 30 S.L.R. 587. The evidence showed that there was a system of constant and regular inspection, and no more could be required of the defenders.

Argued for the pursuer and respondent—The Sheriff-Substitute had rightly held the defenders liable. The platelayers' duty was to see that every key was firmly driven in; but it was clear from the evidence of the pursuer, who saw the key in question at the time of the accident, that it had not been driven in on that morning.