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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hogg v. Cupar District Committee of Fife County Council [1911] ScotLR 205 (15 December 1911) URL: http://www.bailii.org/scot/cases/ScotCS/1911/49SLR0205.html Cite as: [1911] ScotLR 205, [1911] SLR 205 |
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Page: 205↓
[Sheriff Court at Cupar.
S., the driver of a horse yoked to a road brusher, which had been drawn up on a piece of vacant ground near a cottage, was removing a nose-bag which he had placed on the horse's head, when the horse suddenly backed, injuring H. (an old woman of 75), the occupier of the cottage, who was passing behind the brusher. The brusher was in a place where it might legitimately be, and there was no evidence that S. had any reason to anticipate that the horse would back. S. did not look behind the brusher before pulling off the nose-bag, though he was aware that H. had been in that vicinity shortly before.
In an action at H.'s instance against S.'s employers, held that S. had not been guilty of negligence in failing to look behind the brusher before removing the nose-bag, and defenders assoilzied.
Mrs Isabella Johnstone or Hogg, wife of William Hogg, ploughman, Newton, Falkland, pursuer, brought an action against the Cupar District Committee of the County Council of Fife, defenders, in which she claimed £160 damages for personal injury sustained by her through being crushed between a road brusher and a wall in the neighbourhood of her cottage, owing, as she alleged, to the fault of the defender's servant Sutherland in causing the horse yoked to the brusher to back.
On 21st March 1911 the Sheriff-Substitute ( Armour Hannay) found in fact (1) that on 4th August 1910 the pursuer was crushed against the end of a wall in front of her dwelling-house by a road brusher belonging to the defenders and in charge of their servant George Sutherland; and (2) that the pursuer had failed to instruct that the accident was due to the fault or negligence of the defenders or of their servant George Sutherland, and therefore assoilzied the defenders.
The pursuer appealed to the Sheriff ( Morison), who on 13th May 1911 pronounced the following interlocutor “Sustains the appeal: Recals the Sheriff-Substitute's interlocutor of 21st March 1911: Finds in fact (1) that on 4th August 1910 the defenders' servant George Sutherland in the course of his employment drew off a horse and road brusher from the main road in the village of Newton, Falkland, on to an open space in front of the pursuer's cottage, leaving a distance of about 4 feet between the back of the brusher and the end of a wall which adjoins the pathway leading from the public road to said cottage; (2) That about 1·30 on said date the pursuer left her cottage in order to point out to a message girl the house of a Mrs Duncan, and for this purpose proceeded by the said pathway passing through the said 4 feet space between the wall and the back of the brusher on to the public road, and having directed the message girl, was returning to her house by the same route when the defenders' said servant Sutherland pulled a nose-bag out of which the horse was feeding off the horse's head and thereby caused the said horse to back; (3) That the pursuer was thereupon crushed between the end of the wall and the back of the brusher and thereby sustained the injuries detailed in the joint medical report; (4) That shortly before pulling off the nosebag Sutherland was aware that the pursuer, her husband, and a man named Ogilvie, were about the back of the brusher, but that he failed to look and ascertain whether the pursuer was exposed to the danger of being crushed at the time when he caused the said horse to back; (5) That said accident was caused by the negligence of the defenders' said servant Sutherland, for whose neglect the defenders are responsible: Finds in law that the defenders are liable in reparation to the pursuer, and assesses the damages due to her at the sum of £62 sterling: Therefore grants decree against the defenders for the sum of £62 sterling as in full of the principal sum craved in the initial writ; and decerns.”
Note.—“In this case the pursuer, who is seventy-five years of age, and resides in a cottage at Newton, Falkland, claims damages for personal injuries sustained by her through being crushed against the wall on the footpath adjoining her house by a road brusher belonging to the defenders and in charge of their servant George Sutherland. Many of the facts admit of no doubt, and the only question on the merits of the case is whether the unfortunate accident which occurred is due to actionable negligence on the part of Sutherland.
“The circumstances are briefly these—… [ After narrating the facts the Sheriff proceeded—] … There is some doubt as to the precise manner in which the bag was pulled off, but in my opinion it is in accordance with the weight of the evidence that it was Sutherland's act in pulling off the bag which caused the horse to back. It was strongly urged for the defenders that this was not a negligent act, and under ordinary circumstances I am prepared to assent to this view. But the situation was peculiar. Sutherland had drawn up the brusher on the vacant ground in such a position as to expose any one using the pathway to the danger of being pinned between the end of the wall and the back of the brusher if the horse backed even the small distance of 4 feet. He was aware of the vicinity of the pursuer and her husband to the end of the brusher, and his duty, I think, was either to look and ascertain that no one was
Page: 206↓
placed in the position of danger before he pulled off the nose-bag, or at least to have taken adequate precautions against the backing of the horse, a contingency which most of the witnesses describe as quite likely in the circumstances. I think Sutherland failed in this duty.…” The defenders appealed, and argued—The onus of proving fault lay on the pursuer, and she had failed to discharge it. There was no evidence that Sutherland was in a position to anticipate that the horse would back when the nose-bag was being removed, and that being so there was no duty on him to look behind. It was a case of pure misadventure.
Argued for respondent—It was common knowledge that a horse went back if a nose-bag were pulled off, and that being so it was the duty of the defenders' servant to look behind before removing it. Where, as here, there was a reasonable probability of danger resulting, it was the defenders' duty to provide against it— M'Ewan v. Cuthill, November 16, 1897, 25 R. 57; 35 S.L.R. 58; Milne & Co. v. Nimmo, July 13, 1898, 25 R. 1150, 35 S.L.R. 883; M'Dowall v. Great Western Railway, [1902] 1 KB 618. [The Lord President referred to Shaw v. Croall & Sons, July 1, 1885, 12 R. 1186, 22 S.L.R. 792.] Esto that the horse had never backed before when the nose-bag was being removed, there must have been fault on defenders' part in so removing it as to cause the horse to back.
I am of opinion that the decision of the Sheriff-Substitute was right, but I do not form that opinion on the consideration that it was the Sheriff-Substitute who saw the witnesses and that therefore his opinion should be preferred to that of the Sheriff who did not see them. Where there are questions of credibility that consideration always receives weight, and it has received prominence in a recent judgment of the House of Lords. But it does not apply to the present case, nor to any case which turns not upon credibility but upon inferences or conclusions to be drawn from proved or admitted facts.
It is the duty of the Sheriff in cases such as the present to review the whole facts as well as the law laid down. Accordingly I think the learned Sheriff was entirely within his province when he came to a different conclusion from that reached by the Sheriff-Substitute, and I think we are within our province in considering which conclusion we should prefer. I prefer the judgment of the Sheriff-Substitute, because I do not find any proof of negligence, I Negligence is a breach of some duty, and I think, with respect, that the interlocutor of the Sheriff fails in this—that while he states four findings in fact none of these support the fifth, which is a finding that the “accident was caused by the negligence of the defenders' said servant Sutherland.” A finding of negligence is often a mixed finding of fact and law, and coming to the actual facts in question it seems to me that the case turns upon a very narrow point.
It is admitted that Sutherland did not look when he was removing the nose-bag to see whether there was anybody behind the road brusher. On the other hand, I think it is quite clear that there was nothing wrong in the brusher being where it was, because ample space was left between it and the wall behind it for a pedestrian to pass. Was there anything to make Sutherland suppose that the horse might back if he took the nose-bag off? I think not. I think it is proved that he performed the operation of taking off the nose-bag in what one may call the ordinary way. There must be a combination of pulling and lifting in removing a nose-bag, and there is no proof whatever that this man took off the nose-bag in any way in which he had not done the same thing during all the time that he had had the same horse. Nor is there any evidence that the horse had ever backed when the nose-bag was taken off. If the nose-bag was taken off in the ordinary way, what reason was there to suppose that the horse would back? I think none, and upon that simple ground I come to the conclusion that the interlocutor of the Sheriff-Substitute was right.
Page: 207↓
The Court pronounced this interlocutor—
“Recal the interlocutor of the Sheriff, dated 13th May 1911: Affirm the interlocutor of the Sheriff-Substitute, dated 21st March 1911; repeat the findings in fact and in law contained therein: Of new assoilzies the defenders from the conclusions of the action, and decern.”
Counsel for Pursuer (Respondent)— Constable, K.C.— Mercer. Agent— R. S. Carmichael, S.S.C.
Counsel for Defenders (Appellants)— Munro, K.C.— T. G. Robertson. Agent— James Ayton, S.S.C.
