Scottish Court of Session Decisions

In the afternoon of 13th July, 1833, a coach plying between Paisley and Glasgow, belonging to the advocator Lyon, coach-proprietor in Glasgow, broke down on its return to Paisley. The overturn was occasioned by one of the wheels coming off in consequence of the breaking of the linch-pin. The respondent, Lamb, an outside passenger, was thrown on the ground and was considerably bruised and injured.

Thereupon Lamb raised an action before the Sheriff of Lanarkshire against Lyon, concluding for damages, laid at £400. In support of the action, he alleged (in his Condescendence) that the coach was insufficient and insecure in various particulars, viz., that the general condition of the coach was notoriously bad, and that it had been complained of; that it had broken down both before the accident in question and after it; that the wheel which gave way was one made for a different vehicle, and which did not fit the axle so perfectly as to ensure safety; that the strap for retaining the linch-pin in its place was awanting when the vehicle broke down; that the linch-pin was too thin and of bad iron, and that it had been previously broken and had been welded on the morning of the accident; and that on account of the coach being in a bad state, a driver of more than ordinary caution had been selected to drive it. He pleaded, 1st, That stage-coach proprietors, when injuries ensue to passengers, are liable for culpa levissima. 2d, That the onus probandi that the overturn was occasioned by mere accident lay on the defender.

Lyon, in defence, denied the pursuer's allegations, and pleaded that the injury complained of having been occasioned by accident, without any fault or negligence on the part of himself or his servants, he, as proprietor of the coach, was not responsible in damages.

The pursuer was allowed a proof of the above averments, and the defender a conjunct proof, on considering which the Sheriff-substitute found that the pursuer had failed to instruct his claim for damages, and assoilzied the defender with expenses. This interlocutor was altered by the Sheriff, who found the defender liable in £200 damages.

Lyon then brought an advocation of the Sheriff's judgment, in the course of discussing which before the Lord Ordinary, his Lordship allowed an additional proof on certain points as to which further information seemed to be desirable. Taking the whole evidence together, it appeared, inter alia, that the coach in question was the newest of three or four then running on the same road; that it had been recently overhauled, and was considered as good as new a few weeks before the accident; that it had never been complained of, and had been run for several years after the accident without any appearance of decay; that the wheel which came off was an extra or spare hind-wheel, which was quite sound, and had been put on the coach ten days before, and continued to be used after; that the bush of this wheel was of the same size and make as the bush of the other wheels of the coach, and, to appearance, fitted the axle equally well; that while the other wheels had been greased at intervals of a day, this wheel had been greased every morning, as it did not keep the grease so well; that when a wheel is to be greased, it is taken off, and the linch-pin and its fastenings undone; that the linch-pin was of the best iron, and of proper make, and had never been welded; that the mode of fastening the pin was by a strap passing through the lower part and over the pin, and also by a screw-nut screwed into the end of the axle, the end of the screw being let into a hole punched in (but not through) the side of the linch-pin; that the lips or edges of this hole were considerably worn down, so as to have the effect of rendering the hole comparatively more shallow; that on the morning of 13th July the coach had been looked to by the roughmen of the defender's yard, and the wheels, linch-pins, and screw-nuts were, to appearance, in proper condition; that the coach went to Glasgow in the forenoon, and was returning to Paisley in the afternoon, when it broke clown near the middle of the stage, while running at the ordinary pace; that the coachman (Wingate) was the regular driver of the coach, and a steady man; that the linch-pin broke above the part through which the strap was passed, and below the hole intended to receive the end of the screw; that the two pieces of the pin were found some hundred yards from where the overturn took place, the lower part having the strap attached to it entire and unbuckled, being found ten or twelve yards nearer Glasgow than the upper and larger piece; that there was no appearance of an old crack at the broken part; that the two pieces were given immediately afterwards to Wingate, but the smaller piece subsequently disappeared, and no account was given of it by Wingate, the other piece being a production in process; that there was a spare linch-pin and strap in the pocket of the coach, which, after the accident, was put into the axle, and secured with the former screw-nut, the coach being then driven on, as before, to the half-way house.

On this state of the facts, it was contended for Lamb,—

The fact of the overturn and of the injury suffered being admitted and proved, insufficiency is to be presumed in the carriage, and negligence on the part of the coach-proprietor, or his servants; at all events the onus of proving that the carriage was sufficient, and that there was no negligence, is thrown upon the proprietor; ¹ but that onus is not discharged in the present case, looking to the fact of the wheel which caused the accident being an old wheel, and requiring more frequent greasing than the others, tending to show that it did not fit the axle, and to the circumstance of the smaller piece of the linch-pin having disappeared in the hands of Wingate, for whom the advocator is responsible, and which is to be regarded as a keeping back of evidence; and looking also to the necessary inference from the upper and principal part of the linch-pin having come out at all, either that the screw-nut was not screwed properly home, or that the hole in the linch-pin was not sufficient to retain the end of the screw, both of these being necessary to the security of the linch-pin, and the affirmative of neither having been proved; the coach-proprietor, therefore, must be liable in damages, the accident not being shown to have been occasioned by any external cause or vis major, and he not having redargued the legal presumption against the sufficiency of the carriage and the care of his servants.

For Lyon it was contended—

Comparing the respondent's grounds of action with the evidence, his allegations are entirely disproved, and his argument as to the keeping back of evidence, and as to the screw-nut has no reference to the original grounds of action; the carriage of passengers is not under an implied warranty like the carriage of goods; negligence must be proved on the part of the coach-proprietor, or at least the fact of injury being sustained by an overturn does not make it incumbent on him to negative every possible view as to the insufficiency of the coach, but only to show generally that the materials of the carriage were good, and that to all appearance every thing was right when it started; ² there being no absolute warranty therefore for the safety of the passengers, the true question is, was the advocator, under the circumstances, responsible for the accident,—and this he cannot be held to have been, looking to the evidence of the sufficient state of the coach and to the want of proof of negligence on the part of his servants.

The Lord Ordinary “advocated the cause, altered the interlocutor of the Sheriff complained of, and assoilzied the advocator from the conclusions of the original action, but found no expenses due,” adding to his interlocutor the note subjoined. ^*

Lamb reclaimed on the merits, and Lyon on the point of expenses.

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¹ Anderson v. Pyper, March 18, 1820 (2 Murray, 261)—Christie v. Griggs,1807 (2 Campbell, 79)—I Bell, 462, and Cases there cited.

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² Anderson, supra— Aston v. Heaven, 2 Espinasse, 531.

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^* “There is still a shade of difficulty upon one view of this case, and it must be admitted to be generally a hard one for the respondent, and yet the Lord Ordinary is satisfied that the judgment must be for the complainer, on these two considerations. 1st. That the whole of the averments on which the respondent rested his claim on the record have been distinctly disproved; and 2d, That any insufficiency which may be found in the proof of other material facts, not timeously stated in the record, may be fairly ascribed to the respondent's delay in bringing them into notice, till the means of establishing the whole truth with regard to them had been unavoidably lost. It is scarcely necessary to add, that in the Lord Ordinary's opinion, the conclusion which the complainer draws from what is proved as to these last-mentioned facts, is the most probable, and the most reasonable to be adopted.

“In his revised condescendence in the original action, the respondent enumerates, under the 21st and 22d articles, the several particulars, in respect of which he avers that the coach of the complainer (by the breaking down of which he was injured) was insufficient and insecure, and these are distinguished (in the 22d article) into these seven heads. 1st. That the coach was notoriously in bad condition generally, and had been complained of, and that this was known to the complainer, who had declared that he was resolved to lay out nothing for its repair, but ‘to let it run done.’ 2d. That it had accordingly broken down both before the accident in question and after it. 3d. That the wheel which came off was a wheel borrowed from another carriage, and did not fit the axle to which it was now applied. 4th. That there was no strap to the liuch-pin when the accident occurred. 5th. That the linch-pin was too slight, and made of bad iron (to which it was afterwards added, that it had been previously broken, and had been hastily welded on the morning of the accident). 6th. That it was on account of those known defects in the coach, that Wingate, a driver of more than ordinary caution, had been selected to conduct it. 7th. It was added (and at no time disputed by the complainer), that the weather and road were good, and the coach proceeding at an ordinary rate when the break took place.

“Now, the Lord Ordinary not only holds these to be generally relevant allegations, but is of opinion that, when the actual breaking down of the coach was admitted, the onus of disproving them, or, generally, of establishing that the vehicle was sufficient, in so far as skill and diligence could ascertain it to be sufficient, was truly on the complainer. He holds, however, on the other hand, that he was not bound absolutely to insure its sufficiency, or liable either for necessarily latent defects, or mere accidents or disasters. The true question, in short, in all such cases is, Whether the overturn was occasioned by negligence? and the owner is, in the first instance, at least bound to prove due care and diligence.

“Now, looking at the whole of the evidence on those principles, the Lord Ordinary conceives that the complainer has clearly proved these several facts, in opposition to the whole recorded averments on the part of the respondent. 1st, That the coach in question was the newest of three or four which then run on the same road; that it was not more than two years old; and had been as good as new within a few weeks before the accident in question; that it had never been complained of, or reported to be in any way insufficient; and that, in point of fact, it ran regularly for two or three years after the accident without any appearance of decay. 2d, No proof was attempted of its ever having broken down on any other occasion. 3d, That the wheel which came off was a duplicate or spare wheel, the bush of which was cast in the same mould with all the original wheels, and fitted the axle as perfectly as any of them; and that it had been so used for ten or twelve days before the accident, and continued to be used for some time after it. 4th, That the strap was through and round the linch-pin when the coach started, and was afterwards found entire, and not even unbuckled, along with the broken pin. 5th, That the linch-pin was more than usually strong, and made of the very best materials, and that it had never been broken or welded. There were actually spare linch-pins in the boot of the coach when it broke down, so that the idea of its having been patched up in a hurry in the morning is altogether preposterous. 6th, That Wingate was the regular driver of the coach, and had been so apparently from the time it was first started.

“On all these points, being the whole to which the complainer was then called on to speak, it is no longer disputed that he has at last been completely successful. When the original proof was concluded, and the cause was decided in the inferior court, the evidence was certainly defective as to some of them, and it is upon this defect accordingly that the last interlocutor of the Sheriff is principally rested. It was not pretended, in the argument before the Lord Ordinary, that that interlocutor could now be maintained on the grounds then assigned for it.

“The only evidence touching those original points of discussion to which some importance may, perhaps, be still attached, is that of two of the passengers in the coach to whom the broken linch-pin was exhibited at the time, and who say that one side of the fracture appeared to be black and greasy, while the other was clear and bright, as if newly broken. Even if this testimony should be held to prove that there had been a partial crack of some standing, the evidence of the two roughmen (as they are called) seems to establish that it was not discernible on inspection, and should not therefore be regarded in a question like the present, as was held in the case of Anderson, &c. (2 Murray's Jury Cases, 261.) But the Lord Ordinary is satisfied that in this case there was no such partial crack in the pin; and thinks that the appearance described by the witnesses referred to is perfectly accounted for by the nature of the accident. The lower part of the pin broke off first, and was found accordingly some distance further back on the road. Before the strap could get off, however (and it is now proved that it was also found unbroken), it must have worked itself forward over the anterior part of the fracture and the end of the axle, and in this way been thrown off from the projecting head of the pin. Being in close contact, however, with the grease of the axle, it would necessarily soil that side of the fracture, while the other remained clear; and accordingly it is very remarkable that it was only on the upper fragment of the pin that such soil or discoloration was observed (see testimony of James Reid in first proof, ad finem) by the witness who had both fragments before him—the lower portion necessarily falling down as soon as it broke, and so escaping the smear of the strap at the point of separation. It is also observable that the discoloration is expressly described by both the witnesses as being that of grease and blackness, and not of brown rust, which would inevitably have been the appearance of an old crack or fissure.

“The whole case comes now to rest upon a point not raised on the record, and though suggested in some parts of the original proof, not brought prominently forward till the discussion upon the additional or complete proof. That point is, first, as to the necessity of having the linch-pin fastened, not merely by a strap, but by an iron screw-nut let into the end of the axle, in order to have a coach in a legal state of sufficiency; and second, and mainly, as to the actual sufficiency of this part of the machinery in the coach in question, particularly as to the state of the hole in the linch-pin into which the point of the screw-nut was (or should have been) inserted.

“There is a great deal of contradictory evidence as to the first point, and also as to the real utility and accompanying hazards of this screw-nut. It appears, no doubt, to have been comparatively of recent invention, and there is proof enough that down to the period of this accident many such coaches went without it, and that even at the present time a considerable number still trust to the strap only on the linch-pin. If this had been the condition of the coach in question, therefore, it would have been a question of some nicety, whether the want of this additional security would have been enough to have subjected the owners, as for want of due precaution, where damage had actually occurred by the coming out of the linch-pin. Such, however, was not the condition of this coach, or the opinion of its owner, as to what was a proper security,—the fact being, that it was fitted with a screw-nut; and in these circumstances, and being decidedly of opinion that such a nut does afford great additional security, the Lord Ordinary holds that the complainer is precluded from arguing that the coach might have been sufficient without it, or, as if he had only held out to the public that they were to trust to the pin and strap alone. Having indicated his own want of reliance on that single fastening, and held out the ostensible addition of the screw-nut also, he was bound to have both in a proper condition, and might have been required, if timeously called on, to have proved that the nut, as well as the strap, was properly fitted when his coach set out on the journey; and to this extent the Lord Ordinary entirely adopts the views of the respondent.

“To what extent, then, has this been proved by the complainer? In what respects may the proof he considered as inconclusive? and what in this particular case ought to be the effect of its imperfection?

“It is most material, in the first place, to observe (and it is this which has chiefly weighed with the Lord Ordinary), that the whole of the direct evidence is entirely in favour of the complainer, and that there is truly nothing to be set against it but inferences and opinions founded on the actual appearance of the linch-pin itself after the accident. The evidence of the roughmen, Lyon and M'Nair, seems to prove sufficiently that the pin and the screw-nut must both have been examined, and observed to be in a proper condition, when the wheel to which they were attached was greased and replaced on the morning of the accident; and it is distinctly sworn to by Campbell, who replaced the wheel and brought the coach to the half-way house a few hours after it, not only that he found the screw in its proper place, and in perfect condition, but that he again fitted it without difficulty into a new linch-pin, which he found in the boot, and brought the vehicle in that way back to Glasgow the same afternoon; and he is confirmed by other witnesses in saying, that the coach continued to run with the same screw-nut for a long time after.

“It is impossible to doubt that this is at least prima facie evidence of the sufficiency of this part of the machinery, as well as of the rest, and such, it is even thought, as should transfer to the respondent the burden of proving the insufficiency he alleges. Now this proof consists chiefly in exhibiting to the Court that part of the linch-pin which contains the hole for the point of the screw, which, in its present condition, is certainly worn wider and more shallow than it probably was originally; and in endeavouring to make out by reasoning, and the opinions of persons of skill, 1st, That in that condition it could not be considered as safe or perfect; and, 2d, That if originally well constructed, it could not have been brought into that condition in the course of one day's journey. There is great contradiction, and many absurd statements, in the evidence on both these points; and those, and the arguments suggested by them, and by the actual appearance of the pin, are such as to leave no little uncertainty as to what should be the proper conclusion. It is chiefly on this account that the Lord Ordinary has thought it right to fall back on the prima facie and direct evidence already referred to, and also to give effect to the consideration, that the respondent did not call the attention of the complainer to this part of the case till two years after the accident had occurred; and that not less than four years had elapsed before it was mutually discussed in the course of leading the additional proof ordered in this Court.

“It would be idle to enter here upon any examination of the opinions which mostly compose this conflicting, and for the most part very unsatisfactory evidence. What has most struck the Lord Ordinary in considering it, along with the pin itself, and the model of the axle, in process, is shortly this: The pin, it is agreed on all hands, came out by being forced or shaken upwards, within a very short time after the lower part through which the strap passed had been broken away. If the point of the screw had been then at the bottom of the wide or open part of the hole, and had kept its place notwithstanding the shock by which the fracture must have been occasioned, it appears to him that the lower part of the pin could not have been forced up past this projecting point, without being grooved or rutted by that point through its whole length to the full depth of the wide part of that hole, whether it was more shallow than it should have been or not. Now, though the hole is visibly most worn on the lower side, and somewhat elongated in that direction, the lower surface of the pin is not grooved or furrowed in any degree. The Lord Ordinary must conclude, therefore, independent of any evidence, that when the pin did at last rise, and ooze out of the upper side of the axle, the point of the screw was not inserted beyond the lips or edges of the hole. If this was so, in consequence of its not having been screwed properly down in the morning, that was negligence for which the complainer would have to answer. But the evidence of the roughmen, who swear to all the fastenings having been then properly fixed, seems to exclude this solution, if the case at least will admit of any other; and there are other two which appear to the Lord Ordinary to be more probable in themselves, and not to be exposed to such direct contradiction. In the first place, the point of the screw (which seems to have been of iron merely, and not of steel), may have been partially broken, or deflected upwards by the same shock which broke the lower part of the pin, so as to allow it to slide past it without tearing or ratting it in the passage; and 2d, The screw may by the same shock have been driven a little back, or partially unscrewed, so as to withdraw the point beyond the lips of the hole, although before the shock it had been fairly within them. It is perfectly well known that the screws of a carriage are frequently driven back in this way by the mere thrill and shaking of its movement, without any such shock upon the substance in contact with them as must have occurred when this strong pin was snapped across in its lower part. The screw must itself of course have been lost sight of, or worn out long before the respondent brought this part of the case into notice three years after the accident, and it was therefore impossible to verify the fact of these two last suppositions by its actual production soon after; and as the witness Campbell swears that he actually fitted it into the new linch-pin that very day, and saw no defect about it, it is a supposition which cannot well be admitted. But it is to the other, or the slipping back, or partial unscrewing of the nut at the time of the shock, that the Lord Ordinary inclines. For though the same witness Campbell says, at the very end of his deposition, that it did not appear to him that the nut, when he first saw it after the accident, had been in any degree unscrewed, it is very remarkable that he observed, that at this very time it had not been screwed close up to the axle, though, as he supposed, quite far enough home to catch hold of the pin. According to all the models produced, the nut, when properly fixed, is screwed close to the end of the axle. It is needless to say that where there can be no direct evidence of the precise way in which such an accident occurred, it is impossible to go upon any thing but what may be most probably inferred from the evidence there is; and where, in a question like this, there is prima facie evidence in favour of the defender, it is humbly conceived that the circumstance of the onus probandi being primarily on him, cannot affect this fair balance of probabilities.

“The Lord Ordinary, however, cannot find the respondent liable in expenses. He was a great and innocent sufferer, from the actual failure of the vehicle in which he had paid for his passage; and not being himself skilled in the construction of such vehicles, may pardonably have erred in the particular allegations which have been made as to its insufficiency; whilst the complainer, whose means of knowledge in all those respects must have been perfect, did certainly conduct his proof, in the first instance, in a way which may be thought to have justified the judgment of the Court below.”