Scottish Court of Session Decisions

Robert Tait, West Port, Selkirk, pursuer, brought an action in the Sheriff Court at Jedburgh against Robert Trotter & Sons, Newtown St Boswells, defenders, for damages resulting from a collision between a motor cycle with side-car attached, which the pursuer was riding, and a traction-engine belonging to the defenders.

The pursuer pleaded, inter alia—“1. The pursuer having suffered loss, injury, and damage through the fault and negligence of the defenders or of those for whom they are responsible as condescended on, is entitled to reparation therefor.”

The defenders pleaded, inter alia—“6. Pursuer not having been injured through any fault or negligence of defenders or their servants, the defenders are entitled to be assoilzied. 7. In any event pursuer having by his own fault or negligence materially contributed towards causing the injuries and damage he sustained, is consequently barred personali exceptione from insisting on a claim for compensation therefor.”

The facts are given in the note ( infra) of the Sheriff-Substitute ( Baillie), who, on 14th December 1915, assoilzied the defenders, finding the pursuer guilty of contributory negligence.

Note—“A collision took place on 11th February last at 7·15 o'clock p.m. on a dark sleety night near to St Mary's Loch between a motor cycle with side-car attached, ridden by the pursuer, and a traction-engine drawing two waggons of coal belonging to the defenders. The actual facts, as to which there is not in reality much dispute, are these—The lights of the motor cycle and traction-engine were visible to one another about half a mile or more apart and were then lost sight of, and as it appears from the Ordnance Survey that there was another road during the time they were lost on which the motor cycle might have travelled, I think this first point may be disregarded, as it does not follow that the engine-driver could know that the light was necessarily coming towards him. Thereafter the respective lights came into one another's vision at a

Page: 299↓

distance of about 400 yards along a straight road. I may here remark that the cycle was lighted by one lamp and the engine by two hurricane or storm lamps hanging low down in front of the axle and about 2 feet apart from one another. These lamps all appear to have been efficient and have given a good light. The cycle was travelling at the rate of 10 to 12 miles per hour and the traction-engine at about 3 to 4 miles, so that these two approaching vehicles were bound to meet in about 1 1 4 minutes. The road at the point of the collision was 14 feet 9 inches wide, of which 10 feet was macadam or metalled road, about 3 feet 6 inches on the loch side was ribbing with some grass growing through it, and composed of a hard surface, while on the other or hillside there was another 15 inches of ribbing. The traction-engine was travelling along the centre or macadam portion with its rear near side wheel about 3 feet 6 inches from the extreme edge of the road on the loch side, thereby leaving only about 3 feet 6 inches on its offside for approaching traffic to pass. The width of the traction-engine was 6 feet 5 inches across the front wheels and 7 feet 9 1 2 inches across the rear wheels, in each case outside measurement. The width of the cycle with side-car attached was 4 feet 6 inches. When the lights respectively came into sight at a distance of 400 yards the drivers of the two vehicles mutually formed erroneous impressions. This they frankly admit, and it is the keynote of the cause of the accident. The engine driver concluded from the single light he saw that an ordinary bicycle was approaching, which would have ample room to pass on the 3 feet 6 inch space available, while the pursuer concluded that the two lights, which he saw to be about 2 feet apart, were those of a cycle car, which he further assumed would be duly proceeding on its own side of the road, and would leave him 6 feet to 6 feet 6 inches to pass. He therefore continued at his original pace of 10 miles or so per hour till he got nearer the traction-engine, and when about 6 or 8 yards from it he was running at a pace of 6 miles per hour. He then discovered its true nature and position, but being unable to pull up in time ran the wheel of his side-car on to the slope of the hill. He managed to pass the front wheels of the engine, but his handlebar was caught some 4 or 5 inches by the near wheel, and he and the cycle suffered certain injuries. At the actual moment of the collision I am satisfied that the traction-engine had stopped. The driver says he stopped it when he recognised some 30 yards away that he had to deal with a motor cycle and not an ordinary bicycle, and this fact of stopping is proved by the fact that he and the steerer both heard the sound of broken glass when the cycle lamp was broken by the collision. This they would not have done if there had been the noise of a traction-engine in motion. Further, I think that the pursuer's injuries would have been seriously aggravated if the rear wheel had been in revolution at the actual moment of impact. I lay stress on this fact because I think it is important to note that in my opinion it was the motor cycle that ran into the traction-engine, and not the traction-engine that ran into the motor cycle. The pursuer founds his claim of damages on two grounds—(1) that the defenders were not travelling on their own side of the road, and (2) that they had not conformed to the proper regulations as to lighting, and had deceived him by the position of their lamps. The defenders on their side plead contributory negligence. Now on the first ground I think it is clear from the evidence, which I do not propose to analyse, that at the actual spot of collision there was hard roadway on the loch side on which the traction-enginecould have drawn. At the same time this side, 200 yards further back, had been of a nature doubtful for engine traffic, and there was nothing inherently wrong in the engine travelling along the centre of the road, in view of the fact that this was a country road with a narrowish centre portion metalled and used by traffic, and two sides somewhat overgrown by grass, and either not metalled, or at any rate less perfectly metalled, and that the night was a dark one, and owing to the falling sleet one in which it was difficult to see. This, however, was always subject to the proviso that the engine should draw aside to its left or near side to allow approaching traffic to pass— Scott v. Glasgow Police Commissioners, 21 R. 466, per L.J.-C. at page 468, 31 S.L.R. 370, at page 371. Now it is undoubtedly the fact that the engineman—there were, as is required, two on the engine, the driver on the right, looking out and stopping, &c., the engine, and the steerer on the left—did not attempt to draw to the side when they saw the cycle light, supposing that it was an ordinary bicycle, which would have room to pass. It must, however, be borne in mind that any such attempt would not have averted the collision as the two vehicles met within about 1 1 4 minutes after sighting one another, and it is in evidence and is apparent that some considerable time must elapse before a traction engine and its two waggons can be drawn safely to the side. The engine has to be stopped, the gear changed, and on a dark night one of the men would have to descend so as to guide the steerer to enable him to draw close up to the rib or edge along a somewhat grass grown surface. I dismiss entirely defenders' contention that a minute and lengthy examination of the road's surface would have been requisite. To uphold this would render traffic on roads of this description almost impossible by night, and there is no sufficient warrant for it in the evidence. In any case, however, the operation would have taken some considerable time, probably from 4 to 5 minutes, and during this period the rear waggon would have been projected further across the road, and being unlighted would have constituted a greater danger to the approaching cycle. I am therefore satisfied that there was no time for the traction-engine to draw across to the left, and that its failure to do so was not the cause of the accident. In my opinion the true cause was that the pursuer,

Page: 300↓

acting under his erroneous impression, rode forward at a pace which in view of his knowledge of the approaching vehicle was excessive, as it rendered him unable to stop when he fully appreciated the position of matters. Further, in this context it must be remembered that the traction-engine had stopped so that no question arises of the traction-engine by being in motion itself reduced the space which the pursuer had to pull up in. Here the pursuer himself ran into it through his belief that there would be a clear roadway in front of him. His second contention is that the lamps on the traction-engine were not affixed in due conformity with the Statute 28 and 29 Vict. cap. 83, sec. 3 (6), which requires the lamps to be affixed conspicuously at each side on the front of the engine, and that he was deceived thereby. Now it is palpably impossible to affix these lamps outside the wheels, and it is common knowledge that in the case of motor cars where similar regulations exist the lamps are placed well within the extreme edge of the car, as the mudguards project considerably beyond the lamps. At the same time it does not appear to me that, given a width between the front wheels of 6 feet 3 inches, these lamps in front of the axle can be said to be affixed one at each side when they are only two feet apart, and it is a question, though not specified by the statute, whether lamps on each side of the smoke-box would not be a more full compliance there with, even though it may entail one or more further lamps in front of the axle to enable the engineman to see the road. Whether that be so or n t the pursuer, as I have stated before, knew of the existence of the vehicle; the latter was stationary; he approached it at a pace too great to enable him to stop; and all this on a dark sleety night involving extra caution. It is therefore not necessary to come to any definite conclusions further than those I have expressed as to whether any blame may be attached to the defenders for their action in remaining on the centre of the road and for the position of their lamps. They may or may not have been to blame, but in any case the pursuer himself was guilty of contributory negligence, and that is sufficient for the decision of the case. There was on his part ‘rashness or want of the care which he was bound to exercise which also directly contributed to the injury,’ so that he cannot recover damages— M'Naughton v. Caledonian Railway Company, 21 D, per L. Wood, at p. 167. Cf. also Gibb v. Edinburgh and District Tramways Company, 1913 S.C. 541, 50 S.L.R. 347. On the remaining point of pursuer's alleged defective vision I agree with Dr Traquair that his vision was sufficient to enable him to ride with safety.”

The pursuer having appealed, the Sheriff ( Chisholm), on 28th January 1916, found that the defenders were guilty of negligence, and that the pursuer was guilty of contributory negligence, sustained the seventh plea-in-law for the defenders, and assoilzied them from the conclusions of the action.

Note“… In failing to be on their proper side of the road when it became necessary for the pursuer to pass, and in taking no step to warn the pursuer time ously of their position, I think the defenders were in fault. But their fault was aggravated by the position in which the lights were placed on their engine. Being only two feet apart, and therefore not near the extremities of a width of 7 feet 10 inches, they were sure to mislead, and in fact did mislead, the pursuer as to the dimensions of the vehicle he was to pass. Consequently the pursuer was deceived as to the amount of space available for his passage between the edge of the road and the side of the engine. It may be, as contended, that the situation of these lights on the engine conforms with the regulations in relation to the matter. It seems to me that it does not. But even assuming that they comply with the letter of the regulations it by no means follows that this would free the defenders from liability to a member of the public if in fact he was misled by the position of the lights. And when the misleading position of the lights is taken along with (1) the monopolising of the middle of the road, and (2) the absence of any attempt to warn or stop an approaching vehicle, and the lack of any means of doing so, I cannot but hold that the defenders were guilty of negligence on the night in question.

Here, however, the plea of contributory negligence on the part of the pursuer comes in.

The pursuer, who founds on the misleading character of the defenders' lights, was himself riding a vehicle lighted in a way which was calculated to deceive, and which in fact did deceive, the driver of the defenders' engine as to the nature and dimensions of that vehicle. The pursuer carried one light in front of his bicycle; there was no light on the side-car—nothing to indicate that there was anything of greter width than a bicycle It was argued that there is in the county where this accident happened (Selkirkshire) no regulation requiring a light to be placed on a side-car. In this case also I say that I do not think that it follows from this that the pursuer is freed from the consequences of failure to indicate in the dark the width of the vehicle with which he is approaching. The statement of the driver of the engine (which I see no reason to doubt) is that he judged the character of the pursuer's vehicle by the light it bore—just as the pursuer had done in regard to the engine—that he thought at first that it was an ordinary bicycle, but, later, owing to the pace, he concluded that it was a motor bicycle and nothing else. For the passage of a bicycle of either kind there was sufficient space on the proper side, and the driver of the engine, having stopped did nothing more. There was nothing to announce the presence of a side-car; indeed, I think the single light practically amounted to an intimation that there was nothing but a bicycle. As matter of fact this absence of any light to indicate that there was a side-car attached contributed materially to the cause of the accident. It is not apparent from the evidence what different course the driver of the

Page: 301↓

engine would have taken, or could have taken, had he been warned in time that it was not a bicycle alone but something of much greater width that was approaching—had he not, in other words, been deceived by the pursuer's single light. Perhaps he could not have done anything to retrieve his negligent position in being in the middle of the road. But I cannot assume that this is so. Nor does it, as I think, relieve the pursuer from the legal consequences of his own negligence. If, instead of a heavy locomotive, the vehicle he was meeting on this narrow road had been an ordinary motor car which could have been moved quickly to a side, and if the driver of it, deceived by the single light, had yielded space ample for the passage of a bicycle but insufficient for the case of a bicycle with a side-car attached, I think the pursuer would have been fortunate if a court took the view that his negligence was contributory only.

I am of opinion that the pursuer was guilty of contributory negligence in another respect. On a dark night, and on a narrow road, and with this misleading mode of lighting his vehicle, it was incumbent on him to have his bicycle under such control as to be able to stop short of any vehicle he met, since it was not improbable that the amount of space he required for his passage might be misjudged.…”

The pursuer appealed, and argued—The defenders acted contrary to the duties imposed on them by statute in occupying the centre of the road, and thus not giving to passing traffic “as much space as possible”—Locomotives Act 1865 (28 and 29 Vict. cap. 83), sec. 3 (3)—and also by not having its lights “one on each side” of the traction-engine—Locomotives Act 1865, sec. 3 (6). The defenders had been negligent at common law The pursuer was not guilty of contributory negligence.

The defenders argued—If the statute exhausted the defenders' duty they performed it and were not at fault, as the phrase in the Act of 1865 “as much space as possible” applied only when there was passing traffic and not when the road was clear. If there was any fault it was the fault of the road authorities for not making the road sufficiently wide. The lights on the traction-engine were sufficient according to statute. The pursuer was guilty of contributory negligence.