Scottish Court of Session Decisions

This is an action at the instance of George Hair Pagan, bank agent in Cupar-Fife, against the North British Railway Co., concluding for £250 in name of damages, for an injury sustained by him while travelling in the defenders’ railway from Edinburgh towards Dundee, on the 23d of December 1865

The pursuer makes the following averments:—

“ During the stoppage of the train, the engine was standing at a water-pillar situated at or near the north end of the said west platform of the said station, and was then, or had .just been, taking in a supply of water from that waterpillar. At this time the said engine-driver was on the ground attending to his engine, and was some what in advance or to the north of the said water-pillar, this water-pillar being about three feet six inches distant from the line of rails.

“ In proceeding from the railway carriage towards the said engine, the pursuer kept on the

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west side of the said water-pillar, being the side farthest from the line of rails; and immediately on passing the water-pillar he turned sharply eastwards towards the line of rails to speak to the engine-driver, and instantly fell into an open pit or drain, about two feet deep, situated immediately to the north of the said water-pillar; this pit or drain is about two feet long from the waterpillar northwards, and about fifteen inches broad two east to west, and was concealed by the said pillar (which is about two feet in diameter at its base) from the view of the pursuer, going towards it from the south, the night also being dark and the place insu5ciently lighted. In this way the pursuer, who was walking pretty smartly, was not aware of the existence of the said pit or drain, until he fell into it as aforesaid.

“The said platform at or towards its northern extremity descends by an incline to or nearly to the level of the rails, this incline being nine feet long, and the height descended being two feet four inches. At the bottom of the incline there is a level space running northwards from the incline to and beyond the water-pillar, the distance from the bottom of the incline to the water-pillar being nine feet or thereby. This level space is nearly on the level of the rails, and is used as part of a level crossing by passengers and others at the said station, and is also used on occasion for setting down passengers. For many years it was the sole level crossing, but some time ago a bridge was constructed at the other (south) end of the platform underneath the railway, which is now used by many persons as a means of crossing from one side of the railway to the other. This station being at a junction, passengers have more occadon to cross from one side of the rails to the other than at ordinary stations. There is no fence or anything else to prevent passengers on the western platform going as far northwards as the said water- pillar and pit or drain, and for many feet beyond the same. The place where the said pit or drain was situated was one to which the public had full and legal access, and which the defenders were bound to have in a safe and suitable condition for the safety of the passengers and the public, and also of their own servants.”

The pursuer having proposed an issue and the parties having failed to adjust it, the Lord Ordinary (Barcaple) reported the case, and to his interlocutor reporting appended the following note:—

“ The defenders maintain that the pursuer has not set forth a relevant case of fault on their part causing the accident in question. It appears to the Lord Ordinary that there is no case on the record of neglect of duty by the railway company, as public carriers, towards the pursuer as their passenger. According to his own statement, he left the carriage unnecessarily, and for a purpose quite unconnected with his conveyance from Edinburgh to Cupar by the defenders' train; and in furtherance of that purpose he went to a part of the line where it was neither necesw nor proper for him as a passenger to be. It is not alleged that he went there by mistake, through the station not being properly lighted or otherwise, though when there the darkness was the cause of his falling into the drain. It is a different question whether, apart from any special duty as carriers to their passengers, the company were guilty of culpable neglect in having an open drain in the situation described in the record. The Lord Ordinary does not think that there are averments on record to raise such a case. It is not said that either the general public or passengers leaving the train were entitled to go there; and there is nothing in the averments from which that can be inferred. On the contrary, the inference from the pursuer's statements seems to be that the accident occurred at a place where he was not entitled to be, either as a passenger or as one of the public. If this is the true nature of the case, he must be held to have gone there at his own risk, without being entitled to rely on any protection from the company. for these reasons, the Lord Ordinary is disposed to think that the pursuer is not entitled to an issue, though he considers the case to be one of some nicety, from the immediate proximity of the drain to the station.”

Solicttor- General and, Monro in support of the relevancy of the action.

Clark and Shand, in answer.

At advising,