Scottish Court of Session Decisions

The pursuer, Gordon Ettershank Gordon, of Mosstown, was injured by falling among some large stones lying on a temporary roadway made while the defenders were constructing the Denburn Valley Line. He sued the Railway Company and Adam Mitchell, their contractor, for damages. Three issues were sent to the jury. The 1st was founded on the joint liability of the defenders; the 2d was founded on the liability of the Railway Company alone; and the 3d on the liability of the contractor alone. The jury found for the defenders on the first issue of joint liability; for the defenders on the second issue directed against the Railway Company; and for the pursuer on the third issue, directed against the contractor, with £450 of damages.

H. J. Moncrieff for the pursuer, now moved for expenses against Mitchell.

Asher for Mitchell objected, in so far as the motion applied to expenses caused by the appearance of the Railway Company.

Birnie for the Railway Company, moved for expenses against the pursuer.

H. J. Moncrieff for the pursuer, objected, (1) because the Railway Company had refused, prior to the raising of the action, to give him access to their contract with Mitchell, and to the other writings which had passed between them and their contractor; and (2) because, if they had any claim for expenses, it lay against Mitchell, and not against the pursuer, since, if Mitchell had admitted liability, as ultimately fixed upon him by the verdict of the jury, the other defender, the Railway Company, would not have been called.

Page: 76↓

The Court found (1) that the pursuer was entitled to expenses against Mitchell, leaving it to be seen, when the account was given in, what amount, caused by the appearance of the Railway Company, was not fairly chargeable against Mitchell. They held, (2) that as the Railway Company had been assoilzied by the jury from both joint and several liability, they would, in the ordinary case, have been entitled to their expenses against the pursuer; but looking to the whole circumstances as stated to the Court, the proper course in this case would be, to find the Railway Company entitled to their expenses only since the date of the closing of the record.