Scottish Court of Session Decisions

This was an action of damages at the instance of Michael Macfarlane or Macparlane against the Caledonian Railway Company. A new bridge was being constructed on the line near Trinity, in October 1866. The pursuer alleged that he was ordered by Mr King, the Railway Company's inspector, to watch this bridge and to report if the trains which passed over the line affected the temporary supports. He was directed to stop all the trains if he saw that the supports were becoming insecure. On the 18th October, between ten and eleven o'clock at night, after he had watched for some time, he observed that the weight of the trains which had passed during the day was causing the uprights to give way, and rendering the surface insecure. The pursuer stopped the next train which came up, and went to tell the inspector. He was after this ordered by the inspector to watch as before until the contractor's men arrived in the morning. It was in consequence of obedience to these orders that he met with the accident for which he now asks damages from the Railway Company. When he was standing on the down line in order to observe what effect an up-train had on the supports, another train came up, threw him down, and dragged him some distance, and so injured him as to make him unfit to earn his own livelihood. He alleged that it was necessary for him to stand on the down line in order to observe the effect of a train passing over the supports.

The pursuer proposed the following issue:—

“Whether on or about the 19th October 1866 the pursuer was injured by an engine on that part of the defender's line which runs from Colt-bridge to Leith, and at or near that part of the said line, near Trinity, where the Edinburgh and Granton branch of the North British Railway crosses it, through the fault of the defenders, to the loss, injury, and damage of the pursuer?”

The defenders pleaded that they were not liable to the pursuer for any injury caused through his own fault or negligence, or through the fault and negligence of his fellow-servant.

The Lord Ordinary ( Barcaple) reported the case on the failure of the parties to adjust the issue, and

Page: 67↓

in his note indicated, an opinion that the case should not be thrown out without further investigation; that the relative responsibilities of the parties could not be properly judged of until the whole facts should be ascertained. His Lordship did not think that it could be held in a question of relevancy, and without any investigation, to be clear that the pursuer, when employed to perform the special duty of watching from a particular spot on the line, the effect of a train passing was not entitled to rely that the defenders' arrangements were such as to make it possible for him to perform that duty without being run down by another train.