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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stewarts v. Scottish North-Eastern Railway Co. [1866] ScotLR 1_251 (28 March 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0251.html
Cite as: [1866] SLR 1_251, [1866] ScotLR 1_251
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SCOTTISH_SLR_Court_of_Session
Page: 251↓
Court of Session Inner House Second Division.
v.
Facts:
In an action of damages against a railway company at the instance of the widow and children of one of its servants, said to have been killed through the fault of the defenders or one of their servants, direction to a jury (per Lord Justice-Clerk) that the onus of proving that there was fault on the part of one of the company's servants lay on the pursuers, and that as there had not been evidence of fault on the part of any particular servant the verdict must be for the company.
This is an action of damages at the instance of Mrs Treziah Maitland or Stewart and others, the widow and children of the now deceased Charles Stewart, surfaceman, Calsies, Cove, against the Scottish North-Eastern Railway Company, for injury occasioned to them by the death of the said Charles Stewart while in the service of the railway company, through the fault of the defenders. The issue sent to trial was as follows:—
“It being admitted that the pursuers are the widow and lawful children of the deceased Charles Stewart, sometime Surfaceman, residing at Calsies, Cove:
Whether, on or about the 8th day of November 1864, the said Charles Stewart was a surfaceman in the defenders' employment, and while returning from his work was struck by a train and killed on the defenders' line of railway between Cairnrobin cutting and Cove Station, through the fault of the defenders—to the loss, injury, and damage of the pursuers?”
Damages for Mrs Treziah Maitland or Stewart laid at £300; and for each of the other pursuers—viz., Margaret Stewart, James Maitland Stewart, Charles Maitland Stewart, Jane Jemima Maitland Stewart, and Francis Maitland Stewart—at £200.
After hearing evidence for the pursuer it was contended on his behalf that by rule thirty-six of the company's regulations, the previous train which passed an hour and a-half before the special train came up, by which the deceased was killed, should have had a red board placed in front of the engine, and that the onus lay upon the defenders to show that the fault of this not having been done did not lie with them.
For the defenders it was maintained that by the regulations the servants of the company were directed to be prepared for the approach of special trains at any time without previous intimation.
The Lord Justice Clerk observed that rule thirty-six was a rule enacted by the company and for the guidance of their servants, and that the onus of proving fault on the part of the defenders lay with the pursuers. He must therefore direct the jury that it was incumbent on the pursuers to prove that the death of Charles Stewart was caused by the fault of some person for whom the defenders were responsible, and that as the pursuer had not done so in the present case they must find for the defenders.
Verdict for the defenders accordingly.
Counsel for Pursuers— Mr Scott and Mr F. W. Clark. Agent— Mr D. F. Bridgeford, S.S.C.
Counsel for Defenders—The Solicitor-General and Mr Watson. Agents— Messrs Webster & Sprott, S.S.C.