Scottish Court of Session Decisions

Alice Mallon or M'Sherry, wife of and residing with Peter M'Sherry, 12 Kidston Street, S.S., Glasgow, pursuer, brought an action with the consent and concurrence of her husband against the Corporation of the City of Glasgow, defenders, in which she concluded for £250 damages in respect of injuries sustained by her in falling off one of the defenders' tramcars.

The pursuer averred—“(Cond. 2) On or about the evening of 1st December 1915 the pursuer was an inside passenger on one of the defenders' electric tramway cars from Preston Street to Kidston Street, Glasgow. When the car approached the stopping-place in Crown Street, almost opposite the end of Kidston Street, the pursuer left her seat in good time and went on to the platform. When the pursuer came on to the platform the conductress rang the bell to warn the driver to stop at said stopping-place and the car slowed down. The pursuer got on to the step of the car to be ready to get off the moment the car stopped.

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There is an upright rod between the platform and the roof of the car that passengers ascending and descending may steady themselves with. The pursuer had a hold of the upright rod with her right hand when she was standing on the step. The step is considerably lower than the platform, from which the pursuer had just descended as the car came to the stopping-place. The pursuer was carrying a heavy child of sixteen months in her left arm, and she herself was in the ninth month of pregnancy, and having got down to the step she was, in her then condition, unable to stand longer, nor was she, burdened as she was, able to climb the high step back on to the platform, when the car on arriving at the stopping-place, instead of stopping altogether, only slowed down almost to a stop, and thereafter continued to move on very slowly, accelerating its pace. The pursuer was unable to retain her position, and moreover feared that the car as it had passed the stopping-place would increase its speed and throw her off with great violence, and she was accordingly compelled owing to her condition as before described to descend on to the road, when she fell on her side along with the child she was carrying and sustained the injuries after mentioned. The actual place where the pursuer was compelled to descend was some little distance past the place where the car ought to have stopped but failed to do so.… (cond. 3) The defenders' driver was in fault in not bringing his car to a dead stop at the stopping-place. Had he done so the pursuer would have descended safely. The accident to the pursuer and her injuries were entirely due to said failure to stop. (cond. 4) The pursuer sustained serious injuries as the result of the said fall.…” The defenders had these pleas-in-law—“1. The averments of the pursuer being irrelevant and insufficient to support the conclusions of the summons the action should be dismissed. … 4. Any injuries sustained by the pursuer having been caused or materially contributed to by the pursuer's negligence as condescended upon, the defenders should be assoilzied.”

The Lord Ordinary ( Anderson) approved of the issue proposed by the pursuer.

Opinion.—“In this case the pursuer claims damages from the defenders in respect of personal injuries which she sustained by falling from a tramway car in the city of Glasgow. Her case is that on 1st December last year she was an inside passenger of one of the defenders' electric tramway cars, and that when the car approached the stopping-place at which she proposed to get off she left her seat and went on to the platform. The conductress rang the bell to warn the driver to stop at the stopping-place and the car slowed down. The pursuer got on to the step of the car to be ready to get off the moment the car stopped, and she states that instead of stopping the car and allowing her to descend in safety the driver of the tramway car went on, accelerating the pace of the car. The result was that she stepped off for reasons which she sets forth in her condescendence, and fell and sustained injuries. At the time, she says, she was carrying a heavy child of sixteen months on her left arm, and she herself was in the ninth month of pregnancy.

The defenders have asked me to dispose of the case at this stage and dismiss the action. I consider the case a narrow one, and I conceive that the pursuer will have difficulties in obtaining a verdict—difficulties connected with both points in the case—I mean in connection with the conduct of the motorman against whom negligence is alleged, and secondly, in connection with her own conduct.

With regard to the first point, the conduct of the motorman, the averment of the pursuer is that he was in fault in not bringing his car to a stop at the stopping-place. Now, undoubtedly, according to the pursuer's averments he was asked to do this, and according to her case he did not do it. There is no doubt that is negligence on the part of a driver of a tramway car, when he knows or ought to know that passengers are waiting for the stoppage of the car to enable them to leave the car in safety. The pursuer's difficulty is in connecting the alleged fault with the injuries which she subsequently sustained. The fault of the driver was committed, and in one view might be said to be completed, at the stopping-place, and it was subsequent in time to that that the injuries were received, but the jury might take the view that the fault of the driver continued in proceeding onwards, and in not bringing the car to a stop when he knew or ought to have known that there was a woman carrying a child who wished to get off. On that first point I think the case is a narrow one, but I think it is a question for the jury on a consideration of the whole facts, which I have not before me, to say whether or not there was negligence on the part of the motorman—negligence causally connected with the injuries which the pursuer sustained.

The pursuer is also faced with difficulties as to the second point in the case, to wit, her own conduct, because she admits that she left the car in the condition in which she was and burdened as she was while the car was in motion. Prima facie that was negligence, but here again it may all depend on how the facts come out in the evidence. The defenders asked me to give effect to their contention, which went this length, that contributory negligence was disclosed by the pursuer's own averments. The defenders' counsel went further—I think he was entitled to go further—and maintained on the pleadings that the sole cause of this accident was the negligence of the pursuer herself.

It must be kept in view that that is a question of fact, and that the defenders are the pursuers in the issue which this part of the case raises; and I am asked to hold that they have proved their case, and to hold that on the pleadings. That is a matter which is very rarely determined in that way at this stage. It must be kept in view that this is a question for the jury normally and in the ordinary case. I am asked to say at this stage on those pleadings, and on the facts that those pleadings disclose, that no

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reasonable jury on this point of the case could come to any other conclusion than that the pursuer was injured by her own fault. I am unable to reach that conclusion at this stage—in the first place, because I do not know all the facts, and much may turn on how the facts come out in evidence; and in the second place, because even taking the facts to be those which are disclosed in the pleadings—and assuming that those are the whole of the relevant facts to be considered—I am not prepared to say that a jury might not reach the conclusion that the pursuer acted reasonably in what she did.

Here is her case. She says that she got down to the step to be ready for getting off. Mr Fraser, for the Corporation, says that that is an admission of fault. I am not prepared to hold that as a general proposition. I think it all depends on what position the car was in with reference to the stopping-place, and at what pace the car was travelling, and I am not prepared to say that in all circumstances it is negligence on the part of the passenger to get on the step of the car preparatory to descending.

But the pursuer goes on to aver—and I must hold that she will be able to prove it though it is a startling averment—that having got down there with her child, and being in that condition, she could not get back again to the platform. She may get the jury to accept that, but if she does not do that there is an end of her case. I think her duty was to go back to the platform when she saw the car increasing its pace, and get the conductress to ring the bell again and get the car brought to a standstill. She must have climbed on to the platform when she got on to the car, and therefore it is difficult to see why she could not do it on the occasion in question.

That is a difficult preliminary point which the pursuer has to establish. If she establishes it, her case, of course, presents a different aspect altogether, because if that be the state of the facts—she being on the step and being reasonably there, and being unable to return to the platform—she was then faced with the choice of two evils, and the jury may hold that she acted reasonably in choosing the lesser of them. The two evils were, first, if she remained on the step the increasing pace of the car would throw her off; ana second, if she stepped off the moving car she might injure herself. The jury might take the view, if she succeeds in satisfying them, that she could not get back to the platform of the car, that she did not act unreasonably in doing what she did, and that therefore she was not guilty of contributory negligence.

But, as I have said, this second question, like the first, in my humble judgment can only be properly decided when the facts have been fully ascertained. Therefore on the whole matter, although with difficulty, I think it is my duty to let the case go to a jury.”

The defenders reclaimed, and argued—The pursuer should never have placed herself in the position in which she was when the accident occurred, and when she did do so she ought to have held on to the rail and asked the conductress to stop the tramcar. There were several cases where the tramway company had been held not liable in respect of accidents to passengers who had been standing on the platform of the tramcar— Martin v. The Dublin United Tramways Company, 1909, 2 I.R. 13; Murphy v. The Dublin United Tramways Company, 1908, 43 I.L.T. 11. Regarding a passenger standing on the step of a tramcar, vide Breslin v. The Dublin United Tramways Company, 1911, 45 I.L.T. 220. Counsel also cited Goldberg v. Glasgow and South-Western Railway Company, 1907 S. C. 1035, per Lord M'Laren, 44 S.L.R. 740.

The pursuer argued—The Irish cases cited by the defenders had no bearing on the present case. The pursuer was not guilty of negligence in getting on to the step of the tramcar, as that was done daily by thousands of passengers when preparing to alight. This was also a frequent practice in the case of railway trains. The fault lay with the driver of the tramcar in failing to stop at a recognised stopping-place after having slowed down when there was a passenger on his car preparing to alight.

At advising—