Scottish Court of Session Decisions

Janet Kennedy or Neilson, wife of Thomas Neilson, 115 Great Western Road, Camlachie, Glasgow, raised an action against the North British Railway Company to recover £500 in name of damages for personal injuries. The pursuer was a passenger on the defenders' railway from Milnathort to Cupar, Fife, on 22nd September 1906, and met with an accident when getting out of the train at Cupar Station. She averred—“(Cond. 3) The train from Ladybank Junction, by which the pursuer travelled to Cupar, was timed to leave Ladybank at 5.38 afternoon, but it ran considerably behind the scheduled time. When approaching Cupar Station the train was running at a very high rate of speed, and it ran past the station platform, unknown to the pursuer. (Cond. 4) On the train reaching Cupar Station a porter in the defenders' service shouted out the name ‘Cupar’ several times, and thus invited passengers for Cupar to alight. After the train had been brought to a complete standstill the pursuer proceeded to get out of the carriage in which she had travelled from Ladybank Junction. She opened the carriage door, stepped on to the footboard, and held by the handrail alongside the carriage door as she stood on the footboard, while another passenger handed her out her bag from the carriage. The pursuer then proceeded to alight, but in consequence of the train having overshot the platform as before mentioned she fell a distance of about four feet on to the ground. (Cond. 5) By the said occurrence the pursuer sustained serious injuries to her person…. (Cond. 6) The foresaid injuries to the pursuer were caused through the fault and negligence of the defenders, or of their servants, for whom they are responsible. In particular (1) the driver of the engine of said train by which pursuer travelled from Ladybank Junction to Cupar was at fault in respect he failed to pull up the train—and particularly the carriage thereof in which pursuer travelled—opposite the platform at Cupar Station, and culpably and negligently drove beyond the platform the part of the train in which pursuer travelled; (2) the porter who on the foresaid occasion shouted out ‘Cupar’ several times on the arrival of the train there, was at fault in thus inviting the pursuer and other passengers for Cupar to alight from the train while said carriage or part of the train was not opposite the platform, and no proper landing stage or means had been provided for the pursuer alighting with safety; and (3) the stationmaster and other servants of the defenders at Cupar Station were also in fault in respect they failed to give warning to the pursuer as it was their duty to do, that she was not to alight while said carriage or part of the train was not opposite the platform.”

The defenders pleaded that the action was irrelevant.

On 4th December 1906 the Lord Ordinary ( Mackenzie) approved of this issue — “Whether on or about 22nd September 1906, and at or near the Railway Station, Cupar, Fife, the pursuer sustained personal injuries through the fault of the defenders, to her loss, injury, and damage.”

“ Opinion.—I am of opinion that this case should not be withheld from a jury. In the case of Muirhead v. North British Railway, 11 R. 1043; Siner v. Great Western Railway, L.R. 3 Exch. 150, L.R. 4 Exch. 117; and Cockle v. London & South-Eastern Railway, L.R. 5 C.P 457, there was nothing of the nature of an invitation to alight. In Whittaker's case, L.R. 5 C.P. 464, note, there was, Bovill (C.J.) observing that it was a question for the jury whether the calling out of the name of a station amounts to an invitation to alight — see M'Aulay v. Glasgow & South-Western Railway, 23 R. 845; Foy v. London, Brighton, & South Coast Railway, 18 C.B.N.S. 225. No doubt in Whittaker's case it was dusk and in Cockle's case it was dark. In the present case there is no averment it was not daylight. Nor is there any averment that the place was not reasonably safe for passengers to alight.

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There is, however, an averment that the train ran past the station platform unknown to the pursuer. I was doubtful whether this could legitimately be construed to mean that when she proceeded to alight she did not know the train was past the platform and was under the impression the train was opposite it, but I have come to the conclusion that it may.

I am accordingly of opinion that the proposed issue should be approved,”

The defenders reclaimed, and argued—The action was irrelevant. The accident happened about six p.m. on 22nd September. At that hour there must have been sufficient light for the pursuer to see what she was doing. She ought to have looked before getting out of the compartment or stepping down. It was not averred that she stepped out not knowing that there was no platform. That was necessary to make the case relevant. The cases of Whittaker and Cockle cited by the Lord Ordinary were distinguishable. In the former there was an invitation to alight, and in the latter it was dark at the time of the accident. There was no invitation to alight here, for the train had overshot the platform. Further, it was not averred that the name of the station was called out after the train had stopped. Calling out the name of the station while the train was in motion was no invitation to alight— Bridges v. North London Railway Company, reported in a footnote to Cockle ( cit. supra) at p. 459.

Counsel for respondent were not called upon.