Headnote:
This was a motion for a rule. In an action of damages at the instance of the widow and children of a fireman at Soleagirth Colliery, near Kirkintilloch, who was killed there on 6th June 1865, the issue, whether the death was caused through the fault of the defender, was tried before the Lord President and a jury on 9th and 10th April 1866. The jury by a majority of nine to three found for the pursuers, and assessed the damages at £100 to the widow, and £5, £10, and £20 to the three children respectively.
The defender having moved for a rule,
W. M. Thomson was last week heard in support of the motion.
The Court to-day refused the motion.
Judgment:
Lord Dead said—I think we ought not to grant this rule. The whole question for the jury was whether the accident happened in consequence of one of the spokes being broken or being insufficiently secured. There are four witnesses who swear that it was broken, and if it was, that was sufficient to account for the accident. On the other hand, seven witnesses swear as distinctly that it was not. The jury have believed the four against the seven. It was a question of credibility peculiarly within the province of the jury. Such a question is not to be determined by numbers; and if it is not, it is not possible to suppose a more obviously jury question. Even if I were disposed to lean to the side of the seven instead of that of the four witnesses, I don't think that would be a sufficient ground for granting a rule. But I am not prepared to say that I believe the seven instead of the four. Two of the seven were deeply interested in the matter. It was the duty of one of them to repair the spoke when it broke, and it was the duty of another to see that he did so. The means of knowledge of the seven were not greater than those of the four; and, besides, there is a circumstance of real evidence which affects my mind considerably. If the accident did not happen in consequence of a broken spoke, there is no other way suggested in which it did happen. On the whole, therefore, had I been a juryman, I think I would rather have inclined towards the opinion of the majority of the jury.
Lord Ardmillan—There are two classes of cases in which we are asked to allow new trials. In the one class, where juries draw inferences from admitted or clearly proved facts, and the Court are very clear that the jury has gone wrong, we generally, when a strong case is made out, allow a new trial. But where the case is one of antagonistic evidence, and the sole question is the credibility of human testimony, I am always very slow to interfere with the opinion of the jury who saw and heard the witnesses, and observed their demeanour in the witness box. I would require a very strong case for that. I think this case belongs to the latter class. I also agree with Lord Deas that it is a strong circumstance in this case that no other explanation of the accident is suggested, while the want of a spoke is sufficient to account for it. I don't say what verdict I would have returned had I been on the jury. I think the question was one of great nicety.
Lord President—I must confess at the trial I concurred with the opinion of the minority of the jury; but the case was a very nice one, and as your Lordships agree that the motion for a rule should be refused, I am not prepared to dissent.
