Scottish Court of Session Decisions

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Cite as: [1866] ScotLR 1_239, [1866] SLR 1_239

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SCOTTISH_SLR_Court_of_Session

Page: 239↓

Court of Session Inner House First Division—Spring Sittings.

Jury Trials.

Wednesday, Thursday, and Friday, March 21, 22, and 23. 1866.

(Before Lord Barcaple.)

1 SLR 239

Dunlop

v.

Scottish North-Eastern Railway Co.

(ante p. 102).

Subject_1Reparation
Subject_2Culpa.

Facts:

In an action for personal injuries received in a railway collision, verdict for the pursuer—damages £1500.

Headnote:

In this case the Rev. David Dunlop, residing in Belfast, is pursuer, and the Scottish North-Eastern Railway Company are defenders. The following is the issue which was laid before the jury:—

“Whether on or about 1st September 1864 the pursuer, while travelling as a passenger by railway from Aberdeen to Glasgow, in virtue of a ticket purchased from and issued by the defenders, sustained, near the General Station at Perth, severe bodily injuries through the fault of the defenders, or of some person or persons for whom the defenders are responsible—to the loss, injury, and damage of the pursner?”

Damages laid at £6500.

It appeared from the evidence, the leading of which occupied two entire days and a part of a third, that the pursuer, who is a licentiate of the Irish Presbyterian Church, and was editor and part-proprietor of the Banner of Ulster, a newspaper published in Belfast, was in Aberdeenshire on a missionary tour in the month of August 1864. On 1st September 1864 he purchased a third-class ticket at Aberdeen from the defenders, which entitled him to travel by rail to Glasgow on his way home to Ireland. When near the General Station at Perth, the train in which he was travelling came into collision with the train from Inverness, which had arrived at the station a few minutes before. This collision was proved to have been caused through the fault of persons for whom the defenders were responsible. A great deal of evidence was led for the purpose of proving this fault, the nature of the injuries received by the pursuer, the extent of his interest in and income from the Banner of Ulster, and his previous bodily vigour and mental attainments, but the only question which was ultimately left for the jury to decide was the amount of damages to be awarded. The company had made a tender of £1050.

Judgment:

Lord Barcaple said that it was now admitted that the pursuer had sustained injury, and that damages were due to him. It was also admitted that the defenders were the parties responsible. (There had been a plea that the only party liable was the joint-committee of the Scottish Central, North British, Dundee and Perth, and Perth and Inverness Railway Companies, under whose control the portion of railway where the collision occurred was, which plea was given up). But the only question now was, what amount of damages the pursuer was entitled to. The Solicitor-General said that he thought it right that the jury should have before them the nature of the accident, and it was quite true that the circumstances of this case did not present a case of fault on the part of the company's servants of so aggravated a character as to warrant their being found liable in what was called exemplary or inflamed damages. The pecuniary loss which the pursuer had sustained was after all only one of the elements in the case. A very good case for damages would have existed although the person injured had been making no income at all. Mr Dunlop's connection with the Banner of Ulster had figured largely in the case, but it really had not a great deal to do with it. It had been, however, brought forward by the pursuer himself, and he cannot complain that it has been so thoroughly investigated. It is said that because the pursuer has made misrepresentations or exaggerations as to the extent of his interest in the newspaper, and his income from it, he is not to be relied on. But then there have been examined five medical gentlemen from Belfast of great intelligence and most remarkable candour, and although the pursuer's exaggerations may afford a reason for not believing him when he is unsupported by other witnesses, they afford no reason for disbelieving

Page: 240↓

the of other evidence. It appeared that the pursuer joined the newspaper in 1856, when he went into a partnership with a Mr M'Cormick. Each partner was to put £500 into the concern, and afterwards to add £150 more. The pursuer put in his £650, and drew an average income of £120 a-year, which was not paid out of capital, because he has since sold his interest to his partner for upwards of £700. But beyond the matter of emolument derived from the paper, the jury really had nothing to do with all the evidence that had been led as to its success or otherwise. If they were satisfied that the pursuer had been incapacitated from earning his income by reason of his injuries, then his income was an important matter, but for any other purpose the evidence was of no consequence. The pursuer says that he is still suffering seriously from the injuries, and in this he was corroborated by Dr Moore, who said he should not hereafter engage in any exciting work, and that he should not advise an insurance company to have anything to do with insuring his life; by Dr Purdom, who said he should not undertake any work involving continuous effort of the brain; and by his friend Mr Steel, a clergyman who had not seen him since before the collision until yesterday, and who said that he was so much struck with the change in his appearance since he had last seen him that he burst into tears. As to the pursuer's mental attainments they were said to have been not very high; but, however that might be, he was able enough to do his work as editor of the newspaper, such as it was. His Lordship concluded by telling the jury that the question as to how they were to estimate the damages depended upon a consideration of various elements, which might strike different persons in different ways, and of which they were the best judges; but the case they had to consider was that of a clergyman, who had no charge, and had gone into a secular kind of life, who was earning £120 a-year by his personal exertions, and who has now been, if the medical men are right, thrown into poverty through the admitted fault of the defenders.

The jury, after an absence of about half an hour, returned a verdict for the pursuer, and assessed the damages at £1500.

Counsel:

Counsel for Pursuer— The Lord Advocate and Mr Mackenzie. Agents— Messrs G. & H. Cairns, W.S.

Counsel for Defenders—The Solicitor-General and Mr Watson. Agents— Messrs Morton, Whitehead, & Greig, W.S.
1866