Subject_Reparation — Negligence — Proof — Sufficiency of Evidence.
Observations per curiam on the importance to be attached by appellate courts in cases involving the determination of questions of fact, to the conclusion come to by the judge who saw and heard the witnesses.
Sarah Ann Clarke, widow, pursuer, brought an action against the Edinburgh and District Tramways Company, Limited, defenders, for £500 damages in respect of the death of her son, who was run down by a car belonging to the defenders.
On 20th February 1917 the pursuer moved for issues to be allowed. The Lord Ordinary ( Anderson) refused the motion and allowed a proof before answer, which was subsequently led. On 15th June 1917 the Lord Ordinary found the pursuer entitled to damages and assessed the same at £100. The defenders reclaimed to the First Division, and after the case had been heard by the Court (the Lord President, Lord Johnston, Lord mackenzie, and Lord Skerrington) a re-hearing before five Judges was ordered. The case was subsequently re-argued before the First Division with Lord Cullen, and on 26th February 1918 the Court ( Lord Johnston and Lord Skerrington dissenting) assoilzied the defenders.
The pursuer appealed to the House of Lords.
I think for these reasons the learned Lord Ordinary was well justified in the conclusion to which he came, and I have only to add that though the finding in this case is open to review, yet when a case depends upon the simple determination of a plain question of fact it is not desirable that courts should seek too anxiously to discover reasons adverse to the conclusion come to by the learned judge who has seen and heard the witnesses and determined the case upon comparison of their evidence.
When a judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the judge makes any observation with regard to the credibility or not. I can, of course, quite understand a court of appeal that says that it will not interfere in a case in which the judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a court of justice. In courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate court? In my opinion the duty of an appellate court in those circumstances is, each judge of it, to put to himself, as I now do in this case, the question, Am I—who sit here without these advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case—in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then, recognising that I have not the same privileges which he enjoyed, it appears to me to be my duty to defer to his judgment.
The present is the simplest ordinary street accident case, and I do not see any reason for departing from the ordinary simple salutary rule. In the judgments of the Court below I have some doubt whether sufficient stock has been taken of this doctrine, or whether sufficient deference has been paid to the judgment of the learned Lord Ordinary. In those circumstances I can only repeat my regret, as expressed by my noble and learned friend on the Woolsack, that a jury was not possessed of this case, and once possessed of it, finished it once and for ever. The case was tried on 15th June 1917, and in your Lordships' House in London we are reviewing the ultimate judgment passed after a long course of procedure extending to over nineteen months. The case was appealed to one of the Divisions; the judges were equally divided; at great expense it was again re-heard before five Judges; and now on this simple elementary question of fact three Judges take one view and three take another. I, however, do not enter upon that topic, as in the case of Taylor, 1918, 55 SLR 443, which was cited at your Lordship's bar, I expressed my view as to the legal situation of that matter.
It is a pure question of fact which has been found, and there is no question but that there was negligence. The only question before your Lordships is whether there was contributory negligence. The evidence is such that a reasonable person might well find either that the man was, or that he was not, guilty of contributory negligence. The question is whether the defenders have satisfied the onus of proving that he was. It is no doubt my duty, as this case comes not from a jury but from a judge, to accept the responsibility of saying what is the result of the evidence; but in so doing the finding of the judge who saw the witnesses weighs strongly—not so strongly that I may confine myself to asking myself why he was wrong, but to the extent that I may as an appellate judge properly recognise that the Judge of first instance stood in a position of advantage which I myself do not enjoy. It was for the defenders to prove contributory negligence. I think I ought to uphold the Judge of first instance in holding that the defenders have failed to prove it.
Their Lordships reversed the interlocutor appealed from, with costs.
Counsel for the Pursuer and Appellant— J. A. Christie— Melville. Agents— William Geddes, Solicitor, Edinburgh— John Cuthbert, Solicitor, London.
Counsel for the Defenders and Respondents— Macmillan, K.C.— Cooper. Agents— Macpherson & Mackay, S.S.C., Edinburgh— R. S. Taylor, Son, & Humbert, London.