BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
Scottish Court of Session Decisions |
||
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Watson v. North British Railway Co. [1904] ScotLR 42_165 (06 December 1904) URL: http://www.bailii.org/scot/cases/ScotCS/1904/42SLR0165.html Cite as: [1904] SLR 42_165, [1904] ScotLR 42_165 |
[New search] [Printable PDF version] [Help]
Page: 165↓
A checker was run over and killed while engaged in checking waggons on railway sidings. His widow raised an action of damages against the railway company for the loss of her husband, and obtained a verdict. This verdict was set aside on the ground that there was contributory negligence on the part of the deceased. At the new trial the evidence was practically the same as at the first trial, and the pursuer again obtained a verdict. The defenders were granted a rule.
The Court set aside the second verdict on the same ground on which they had set aside the first verdict and granted a third trial.
On 4th August 1902 Richard Watson, a checker in the employment of a firm of shipping-agents at Bo'ness, while engaged at his work of checking waggons in the railway sidings adjacent to Bo'ness Docks was knocked down by an engine which was shunting some empty waggons, and run over by the engine. He died on the same day from the injuries received. The railway sidings where the accident occurred, and the engine, were the property of the North British Railway Company, and the engine-driver was their servant.
Mrs Jane Gemmell or Watson, the widow of the deceased, sued the Railway Company for £500 as damages for the loss of her husband, caused, as she averred, by the fault of the defenders or their servant. The case was tried before the Lord Justice-Clerk and a jury. The pursuer led evidence to show that the accident was caused (1) through the failure of the defenders to take proper precautions for the protection of the deceased and those who like him had occasion to be on the lines in the course of their duty: and (2) through the failure of their servant the engine-driver to keep a proper look-out and give warning. The defenders pleaded, and led evidence to prove, that the accident was caused or materially contributed to by the deceased's own fault or negligence. They also led evidence to show that there was no fault on their part. The purport of the evidence is stated in the opinions of the Judges.
The pursuer obtained a verdict with damages at £200. This verdict was set aside by the First Division, on the ground that the evidence disclosed a case of contributory negligence, the deceased having stepped on to the rails before the engine without having taken the precaution to look and see that no train was coming, and a new trial was granted. At the new trial before the Lord President and a jury the evidence was substantially the same as at the former trial,
Page: 166↓
and the pursuer again obtained a verdict with damages at £100. The defenders obtained a rule.
At the hearing, argued for the pursuer—The questions in the case were purely questions of fact, whether there was fault on the part of the defenders, and whether there was contributory negligence on the part of the pursuer. The jury had found by their verdict that there was fault on the defenders' part and none on the part of the pursuer, and there was evidence before them to support this finding. There was no reason for granting a new trial for no further evidence could be hoped for, and the Court would not set aside a verdict obtained in a second trial to the same effect as the verdict obtained in the first trial, unless the verdict was obviously perverse, which was not the case here— M'Quilkin v. Glasgow District Subway Co., January 24, 1902, 4 F. 462, 39 S.L.R. 328; Grant v. Wm. Baird & Co., Limited, February 20, 1903, 5 F. 459, 40 S.L.R. 365.
Argued for the defenders—It was clearly proved by the pursuer's own evidence that but for the deceased's negligence the accident would not have occurred. The Court was satisfied as to this at the hearing after the first trial, and at the second trial the pursuer's evidence was no stronger, while if anything the defenders' was. A new trial was therefore just as necessary as before. The Court had in a previous case held, setting aside a jury's verdict, that conduct such as the deceased's was contributory negligence— Barnett v. Glasgow and South—Western Railwy Co., January 22, 1891, 28 S.L.R. 339. Where contributory negligence was proved the Court would grant a third trial— Flood v. Caledonian Railway Co., Nov. 30, 1889, 27 S.L.R. 127. This was not a case of doubtful evidence as in the cases cited for the pursuer.
It appears to me to have been sufficiently established that if the deceased had used ordinary care in the performance of his duty the accident would not have occurred. He knew perfectly well that trains were likely to come along the line at any moment, and accordingly it was his duty to look out and see whether any train was coming before crossing or stepping upon the line. If a train had come along at a speed different from that which is commonly adopted in a shunting yard, or if waggons had suddenly come from a place they were not in the way of coming, or when he had no reason to expect them, I can quite understand that a case might be made out to the effect that he was surprised—that something had occurred or had been done which he had no reason to expect. But according to the evidence it seems that a train coming along that particular line was a thing which the deceased ought to have expected. Although not a railway servant, he was, for the purposes of this question, in no different position from a railway-servant, because when a person is carrying on work of which the nature, character, and risks are well known, it is his duty for his own safety to be vigilant, and to see that he does not place himself in a position where he may be run down. Although in the general case one feels a great disposition to support a second verdict and not to give a new trial, still if it is clear, as it is here, that an erroneous view has been taken by the jury, then it seems to me that it is our duty to prevent an injustice being done. Accordingly I think we should set aside this verdict and grant a new trial.
Page: 167↓
The Court set aside the verdict and granted a new trial.
Counsel for the Pursuer— Watt, K.C.—Munro. Agents— Paterson & Salmon, Solicitors.
Counsel for the Defenders— Guthrie, K.C.—Grierson. Agent— James Watson, S.S.C.