Scottish Court of Session Decisions

On 20th June 1911 Mrs Catherine Gibb, widow, 4 Merchiston Avenue, Edinburgh, pursuer, brought an action against the Edinburgh and District Tramways Company, Limited, defenders, in which she claimed £2000 damages for personal injury sustained, as she alleged, through the fault of the defenders in failing to have their cars properly guarded or fenced.

The pursuer averred—“(Cond. 2) About mid-day on 14th September 1910, when out shopping, the pursuer had occasion to cross from the east to the west side of Lothian Road at a point some yards to the north of the Edinburgh Savings Bank branch office there, near the top of said street. Pursuer in so crossing saw the defenders' car, No. 81, approaching from the south, going in the direction of Princes Street, and she stopped between the two sets of tramway rails with the intention of allowing the car to pass her. There was no car approaching from the opposite direction, that is from Princes Street, near pursuer at the time. The car was travelling at full speed—at the rate of about ten miles an hour. The pursuer had taken up a position midway between the two sets of rails so as to be clear of the car, but when it was about halfway past her the lower part of the skirt of her dress was drawn in by the suction caused by the car and caught by the vertical stay on the right side of the car, or became jammed between the main stay and the body of the car. The pursuer was in consequence thrown violently to the ground and dragged by the car for some distance on the causeway on her face. The right rear wheel of the car passed over her left leg. When the car was brought to a stop it was found that the pursuer and her clothing were so much entangled with the wheel and other parts of the car that she was not able to be extricated therefrom for about thirty minutes. (Cond. 3) The said accident was due to the fault and negligence of the defenders. The bottom end of the upright rod of said vertical stay in the car in question projected thereunder to the extent of about 1 inch. Said projection was unguarded, and was a source of great danger to a person standing at the side of the car as it passed. It was specially dangerous to a woman, as her dress is liable to be sucked in under the car as it passes and to catch on the vertical projection. Further, the main stay was unguarded, and a woman's dress is liable to be caught between the stay and the car. It was the duty of the defenders to have had both the vertical stay and the main stay guarded, but this they failed to do. Had the stays been guarded the accident would not have happened. Further, and in any event, it was the duty of the defenders to have had the

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side of the car between the body and between the front and back wheels guarded, and also to have had the wheels themselves guarded. This is usual and customary. The defenders failed in this duty. There was no guard at the side of the car between the wheels to prevent a person who had fallen from getting beneath the car and under the wheels, nor were the rear wheels guarded in front. Had the defenders adopted either of these precautions the accident would not have happened. Both precautions are reasonable and practicable, and are almost universally adopted by other car systems. The usual guard between the wheels consists of a wire netting. Reference may be made to the following systems for such guards—(1) The St Helen's Tramways, (2) the Rothesay Tramways, (3) the Gateshead Tramways, (4) the Burnley Tramways. In these systems the cars have bogie wheels. Where the cars have bogie wheels there is a much greater space between the front and rear wheels, and the greater need for guarding said space. So far as the pursuer can ascertain, it appears to be the invariable practice in this country where the cars have bogie wheels to have guards of some kind along the sides of the cars to cover in the open space between the front and rear wheels. In some cases horizontal boards are fixed across the open space between the wheels. Where bogie wheels are not in use the front and rear wheels are much closer together. In nearly all the cars of this type the structure of the cars between the front and rear wheels is such as itself to afford a sufficient guard. Reference may be made for illustration to the Glasgow, Lancaster, Liverpool, Sunderland, Huddersfield, Halifax, and London cars. The front wheels are in fact guarded in front, and there is no good reason why the same precaution should not be taken as regards the front of the rear wheels. The Edinburgh cars, and in particular the car in question, are particularly dangerous when left unguarded as above mentioned, in respect of the extent of the open space between the front wheels and the back wheels. Frequent accidents take place by reason of the insufficient nature of the guards of said cars. During the month or thereby before the closing of the record no less than four fatal accidents took place owing to the defective nature or want of guards on the defenders' cars, viz.—James M'Cormick, Richard Jordan, John Morton, and James M. Munro. The Edinburgh system, where cars with bogie wheels are used, is the most dangerous system in this country, judged by the number of accidents per 1000 of population. With regard to the explanations and statements in answer, it is admitted that a nut for tightening up the main stay is screwed on to the said lower part of the vertical stay, but explained that the vertical stay projects beyond the nut. In any event the nut itself when unguarded is dangerous and liable to catch the dress of a person standing at side of car. It is not known and not admitted that the type of car in question was approved of by the Board of Trade, and that it has been annually licensed as stated.”

The defenders pleaded, inter alia—“(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed.”

On 7th December 1911 the Lord Ordinary ( Guthrie) allowed the pursuer an issue.

Opinion.—“The defenders discussed the question of relevancy and also the mode of trial if inquiry were ordered.

It appears to me that the pursuer's averments, as amended, are relevant. The danger to which the pursuer was exposed was not obvious to her. On the other hand, if it be the fact that a series of accidents has happened from a similar cause, then the danger must have been known to the defenders, and if it be the fact that a large number of other tramway systems have adopted means for preventing this danger, there may be material for coming reasonably to the conclusion that the defenders neglected a reasonable and ordinary precaution for the safety of their passengers.

But for practice I should have thought that this was not a suitable case for a trial by jury. The question turns on the proper construction of the defenders' tramway cars. A jury is apt to hold that if a certain appliance which the defenders might have fitted on their car would have prevented the accident they were therefore bound to have provided it—a conclusion which does not necessarily follow. But the mere fact that an action of damages involved or turned on questions of construction has not by itself been held ground for withdrawing a case from trial by jury.”

The defenders reclaimed, and argued—The pursuer's injury was due to her own fault, and in her pleadings she had admitted herself out of court. In any event her averments were irrelevant, for there was no duty on the defenders to fence the cars. The cars had been passed by the Board of Trade, and that was sufficient—Tramways Act 1870 (33 and 34 Vict. cap. 78), sec. 35. The case, if relevant, was one for proof and not for jury trial— Cass v. Edinburgh and District Tramways Company, Limited, 1908 S.C. 841, 45 S.L.R. 675.

Argued for respondent—The Lord Ordinary was right. The defenders had failed in their duty to provide cars that were reasonably safe. A car in which the space outside and between the wheels was not protected was not reasonably safe. In other systems where bogie wheels were used the wheels were invariably guarded. In these circumstances the pursuer was entitled to an issue— Wallace v. Culter Paper Mills Company, Limited, June 23, 1892, 19 R. 915, 29 S.L.R. 784; Mathieson's Tutor v. Aikman's Trustees, 1910 S.C. 11. 47 S.L.R. 36.

At advising—