Scottish Court of Session Decisions

Alexander Watson, 531 Duke Street, Dennistoun, Glasgow, pursuer, brought an action against the Corporation of Glasgow, defenders, for damages in respect of personal injuries sustained by him in consequence of having been knocked down by a tramway car belonging to the defenders.

The defenders pleaded, inter alia—“2. The accident not having been caused by any fault or negligence on the part of the defenders or those for whom they are responsible, decree of absolvitor should be pronounced. 3. The accident having been caused, or at all events materially contributed to, by the fault and negligence of the pursuer himself, the defenders should be assoilzied from the conclusions of the summons.”

An issue having been allowed the action was tried before Lord Anderson and a jury, and a verdict for £50 damages was returned in favour of the pursuer. The Court set aside this verdict, and ordered a new trial to take place before Lord Salvesen and a jury. A verdict was again returned in favour of the pursuer, the damages being this time assessed at £200. The defenders obtained a rule on the pursuer to show cause why the verdict should not be set aside as being contrary to the evidence.

The facts established at the trial were thus narrated by Lord Salvesen—“The facts of the case as disclosed in the pursuer's evidence are that he was crossing from the Olympia Theatre in the direction of the Union Bank, which is on the south-west side of Bridgeton Cross. In doing so he had to cross two sets of car rails, and he says that before crossing the first line of the first set of rails he looked to see if any cars were

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coming. He saw one coming. He waited until it passed, and then he proceeded to cross. After he had crossed the second line of rails he looked again in the direction of Canning Street, and there he saw a car—which was presumably the car with which he afterwards came in contact—standing at the points. Although he was given repeated opportunities of indicating in yards the distance he had passed the second line of rails when he saw this car at Canning Street he declined to put any figure upon that distance. So the case stands upon his evidence-in-chief—which I think is putting it in the most favourable aspect for himself—for he says—‘After we crossed the first line of rails we looked again and the car was still standing there. After that we were slightly with our backs to the Canning Street direction and going in a slant towards James Street.’ I take that to mean that immediately after crossing the second line of the first set of rails he looked in the direction of Canning Street and saw the car there, and that he proceeded in an oblique direction towards the second set of car rails, but did not look again in the direction from which traffic might be expected, and he was caught by the curved portion of the front of the car just as he was stepping on the line of rails without having ever seen the car approaching at all, although it must have been in motion for a distance of 40 yards. Now in answer to me the pursuer said—‘I was struck by the car just as I was going to cross the rail. At the moment I stepped on to the rail the car must have been quite close to me. If I had paused for a fraction of a second and looked the way in which the car was coming I would have seen it and avoided it.’ Then he is asked—‘(Q) It is the habit of people to walk so far across a street, and then if they see a car approaching to stop before they get to the rail. If you had done that nothing would have happened?—(A) That is so. (Q) Were you talking with Mr Caldwell at the time?—(A) We might be passing remarks.’ The position therefore of this gentleman is that he considered himself entitled to walk a distance of approximately 20 yards without looking in the direction in which alone he might apprehend danger before stepping on to the car rails. As I remarked when the case was last before us, it is very easy for a foot-passenger to protect himself against a tramway car. He knows exactly the zone—the very limited zone—in which there is danger, and if he proceeds to cross a line of tramway rails without looking to see whether a tramway car is approaching it seems to me that he takes the risk of any injury which may happen to him. In the present case the pursuer's witness Caldwell said that the accident happened when the foot-passenger was just practically in the same line as the driver of the car. He says—“I was just struck by the edge of the rail, and I was never in front of the car so as to be an obstacle in the way of the driver.”

The pursuer argued—The three facts, that the motorman did not keep a proper lookout, that he drove the tramcar at a dangerous and excessive speed, and that he gave no warning by means of his gong, were amply proved. Had the tramcar been under proper control the motorman could easily have stopped it ere it reached the pursuer. There had been no contributory negligence on the part of the pursuer. In crossing the street he was entitled to assume that the car-driver would give warning of his approach instead of running him down without warning as had been the case in the present instance. Counsel referred to Radley v. London & North-Western Railway Company, (1876) 1 A.C. 754, and Davies v. Mann, (1842) 10 M. & W. 546, as ruling the present case in favour of the pursuer.

The defenders argued—The verdict was contrary to the evidence. As the pursuer had, in disregard of on coming traffic, essayed to cross the street without observing an ordinary and reasonable amount of care, he was guilty of contributory negligence. The evidence clearly proved that the pursuer had in actual fact received his injuries through walking into the curved portion at the front of the tramway car. No proof of negligence had been established against the defenders' car-driver, as he had given due warning of the approach of his car by sounding his gong, which warning, however, the pursuer had completely ignored. The pursuer's admission that he had observed the car and yet proceeded on his way across the rails amply proved his contributory negligence.