(In the Court of Session, July 19, 1922, S.C. 714, 59 S.L.R. 553.)
Subject_Reparation — Negligence — Injuries to Children — Heavy Gate in Place Frequented by Children — Children Permitted to Play with Gate — Trap — Averments — Relevancy.
A father brought an action against a colliery company for damages for the death of his son aged nine, who while playing about a gate at the entrance to the colliery was fatally injured owing to the gate, on which other children were swinging, closing and crushing him between the hinge-end of the gate and the gate-post. The pursuer averred that the gate was so constructed that the space between the hinge-end of the gate and the gate-post varied from about one inch when the gate was closed to about one foot when it was open; that the gate when open was in the knowledge of the defenders dangerous owing to its size, construction, and weight; that it was in a state of disrepair, which prevented it from being secured when open by a device which the defenders had provided for that purpose; that children habitually played with the gate with the tacit permission of the defenders; that it formed an allurement which was of the nature of a trap; and that the defenders had taken no precautions to prevent children being injured. Held ( aff. judgment of the First Division) that the pursuer had stated a relevant case for inquiry, and that accordingly the case must go to trial.
The case is reported ante ut supra.
The defenders appealed to the House of Lords.
At delivering judgment—
At the conclusion of the arguments on behalf of the appellants, counsel for the respondent being present but not called upon, their Lordships delivered judgment as follows:—
Holding that view, I am unwilling to risk prejudicing the case by entering into a minute analysis of the statements which are made in the pleadings on behalf of the pursuer. Shortly, his allegations seem to me to come to this, that children were regularly permitted to play inside as well as outside this gate and to swing it, as children will, to and fro; that the gate was of such a size, width, and construction as to be unfamiliar and dangerous to children, and to constitute in effect a trap for them; and that this being so it was the duty of the defenders either to protect the children whom they allowed upon their premises against that danger or to exclude them.
Now, of course, I accept the view that if no relevant case is made on the pleadings the course taken in this case by the Lord Ordinary may properly be taken. The practice of stopping a case on what amounts to demurrer is less common in England than it was, but in this case the Scottish practice must of course be followed. But accepting that view I am not prepared to say that if all the allegations of the pursuer, fairly interpreted, are established and the answers are not made out, a jury could not properly find a verdict for the pursuer. I do not wish to put any obstacle in the way of any legal argument which may properly arise when the facts have been ascertained, and it is sufficient to say that the case ought not to be wholly withdrawn from a jury at the present stage.
For these reasons I am of opinion that this appeal fails and should be dismissed, and I move your Lordships accordingly.
I would also remark that of course in order to get a verdict the pursuer must not only show a breach of duty but must show that the accident occurred owing to that breach of duty, and therefore it is quite clear that if some of the defenders' averments were proved there would be no reason for giving a verdict in favour of the pursuer, even although there may have been something wrong as regards the construction of the gate. But I agree with your Lordship that it would not be advisable to make any minute analysis of what may or may not happen at the trial in order that neither side may be prejudiced.
Their Lordships ordered that the interlocutor appealed from be affirmed and the appeal dismissed with costs.
Counsel for Appellants— MacRobert, K.C.— J. R. Marshall. Agents— W. B. Rankin &Nimmo, W.S., Edinburgh— Beveridge & Company, Westminster.
Counsel for Respondent— T. M. Cooper. Agents— Erskine Dods & Rhind, S.S.C., Edinburgh— Hamlins, Grammer, & Hamlin, London.