Scottish Court of Session Decisions

This is an advocation from the Sheriff Court of Lanarkshire. The action is one of damages for injuries sustained by the pursuer (Kinloch) from having fallen into a hole in the footpath of the public road leading from Holytown to Bellshill, while travelling along the road with her husband. It is directed against the surveyor of the Glasgow and Shotts Turnpike Road Trustees, where the accident happened, on the ground that he failed to have the hole in the footpath properly fenced or lighted by a lantern, to prevent accidents to the passengers along the road. In defence, the defender pleaded that it was no part of his duty, and indeed was beyond his power, to make alterations and improvements on the road, either by the erection of fences or otherwise, without the express order of the road trustees; and therefore that the averments of the pursuer inferred no responsibility on the part of the defender, even had such alterations been necessary or proper for the safety of the public, which he denied. Further, the defender pleaded that although for any fault or omissions he might be liable to his employers, he was under no obligation to make reparation for injuries which may be sustained by the public. The Sheriff-Substitute found, upon the pleas and proof led, that the fall of the pursuer was caused by a slope in the footpath formed for the purpose of giving access to certain neighbouring lands; and said slope having been made prior to the appointment of the defender, there was not such culpa on his part as to render him personally liable; and the Sheriff-Substitute accordingly assoilzied him. The Sheriff (Alison) upset this interlocutor, and found the defender liable in damages, which he assessed at £50. His Lordship held the facts to establish the insufficiency of the road, and the liability of the surveyor for the state of it. At common law, and under the 101st section of the General Turnpike Act, 1 and 2 Vic. c. 43, he was therefore responsible for the injuries which the pursuer sustained. The defender advocated, and after argument the case was to-day taken to avizandum.