Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 REPARATION.
Subject_3 A cart loaded with a cask of wine having been carried over a precipice, the carter found not liable in damages, there being no negligence.

Thomas Heughan
v.
William Rae

Date: 26 November 1776

Click here to view a pdf copy of this documet : PDF Copy

[Supplement, V. p. 577.]

Hailes. I have a great respect for the civil law; yet no text of the civil law shall convince me that a carter holding the halter of his horse, and in that situation forced over a precipice, with his cart and horses, is liable for damages which may arise to what he is carrying in his cart.

Covington. If carters are not bound to answer for the goods committed to their charge, the consequences will be dangerous. I am not satisfied that there was no negligence here.

Gardenston. This is a merciful interlocutor; but contrary to the principles of the civil law, which I greatly respect, and would wish to follow. There is a degree of neglect here.

Alva. The carter did whatever was in his power, and, I think, acted with judgment, though unsuccessfully.

Monboddo. I am for adhering to the principle of the civil law, until better principles can be pointed out. A man, acting in the business which he professes, must be liable, unless the damage happen casu fortuito. A carter is answerable not only for himself, but for his horses. His foremost horse was not fit for his business, for he grew giddy; neither did the carter act judiciously in his attempt to save the horses and cart. It is in vain to talk of the danger of the road; for it was just in the ordinary state, and had been often travelled without any misfortune happening to passengers.

Kennet. A carter who undertakes to convey goods, is answerable for himself and for his horses. But this rule does not clearly apply to the present case. The horse might, in general, have been fit for his business, though on a particular occasion he grew giddy. If the carter was guilty of culpa lata, he must be liable. But the pass was plainly dangerous, and, to prevent such accidents, a parapet wall has been built.

Kaimes. I revere the civil law which says that a man, professing any art, is bound to an exact skill in performing the duties of that art. But there may be a case when there is no perfection, and yet no culpa. Artists must necessarily have different degrees of skill: all are not of equal abilities. How can we censure the carter, when the judges who profess knowledge in carting [1ords Monboddo and Alva,) differ as to the propriety or impropriety of his conduct. We ought to be cautious in applying rules where the damage may be not only great but ruinous.

On the 26th November 1776, “The Lords sustained the defences and assoilyied;” adhering to the interlocutor of Lord Alva.

Act. W. Nairne. Alt. A. Crosbie.

Diss. Monboddo, Covington. Non liquet, Gardenston.