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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Glasgow and South-Western Railway Co. v. Rain [1868] ScotLR 6_279 (29 January 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0279.html
Cite as: [1868] ScotLR 6_279, [1868] SLR 6_279
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SCOTTISH_SLR_Court_of_Session
Page: 279↓
Court of Session First Division.
v.
Facts:
Where a cattle dealer sent by rail a lot of cattle, in a truck selected by himself, signing conditions whereby he undertook all risk of injury or loss in loading, &c., and two of the cattle died on the journey from overcrowding; held that the railway company were not liable, the fault lying with the cattle dealer for selecting too small a truck, and the conditions signed by him being in the circumstances just and reasonable.
On the 11th March 1867 William Rain, cattle dealer, went to the railway station at Castle-Douglas, and made arrangements for having a fifteen foot waggon ready for trucking thirteen of his cattle at Bridge of Dee station on the following day, for conveyance to Norwich. On the following day, Rain and M'Michan, from whom Rain had bought the cattle, trucked the cattle. The following conditions of carriage were signed by Rain:—“(1) The rates of carriage for the within mentioned animals having been fixed at less than the Company's ordinary rates, the owner hereby undertakes all risk of loss, injury, damage, delays, and other contingencies, in loading, unloading, conveyance, or otherwise, except such as shall arise from the gross negligence or default of the Railway Company or their servants. (2) The Railway Company do not undertake to forward the animals by any particular train, or at any specified hour; nor shall they be responsible for the delivery of the animals within any certain time, or for any particular market.” When the truck arrived at Stafford it was found that three of the cattle had fallen down in the truck, one of them being dead, and another so much injured that it had to be killed. Rain brought this action against the defenders for the value of these two cattle, alleging that their death was owing to the gross fault or negligence of the defenders. The defenders denied that the death of the cattle had occurred through any fault on the part of them or their servants, and contended that, the pursuer having signed the above conditions of carriage, whereby he undertook the “whole risk of loss, injury, damage, delays, and other contingencies, in loading, unloading, conveyance, or otherwise, except such as shall arise from the gross negligence or default of the Railway Company or their servants,” they were free from liability. The pursuer, in reply, contended that the conditions of carriage were not just or reasonable.
The Sheriff ( Hector), adhering substantially to the judgment of his Substitute ( Dunbar), pronounced this interlocutor:—“The Sheriff having considered the interlocutor appealed against, the defenders' reclaiming petition, record, proof, and process, as matters of fact, finds that on 12th March 1867, at Bridge of Dee station of the defenders' railway, the defenders received from the pursuer thirteen cattle for the purpose of being conveyed and delivered to Robert Stroyan, cattle-salesman at Norwich in England: Finds that at the same time the defenders procured the pursuer's signature to the document, No. 6 of process, bearing special reference to ‘live stock traffic,’ and specifying the said number of thirteen cattle, and the said address to which they were deliverable at Norwick for the sum of £8, 3s. 9d. of railway fare as therein set forth. Also bearing that the defenders did not undertake to forward the animals by any particular train or at any specified hour, and they would not be responsible for their delivery within any certain time or for any particular market; also bearing that the owner undertook all risks therein mentioned, ‘except such as shall arise from the gross negligence or default of the Railway Company or their servants:’ Finds that when received by the defenders, the said thirteen cattle were, at the sight and with the assistance of their station-master, put into a cattle truck belonging to the defenders, or in their custody and under their control, and the carrying capacity of which was known to them, and for the sufficiency of which the defenders were responsible: Finds that the pursuer was also present and assisted in loading the said cattle, and that no injury was sustained by them in the course of being loaded; Finds that the defenders did not require or stipulate that the said cattle should be accompanied by the pursuer or any servant on his behalf, and that when they were taken in charge by the defenders all the thirteen cattle were in sound condition: Finds that the said cattle were conveyed and delivered to the said consignee at Norwich, with the exception of two, for which the defenders failed to account, except by alleging that they had been trampled to death, or had died before reaching Stafford by the overcrowding of the truck in which they had been placed for conveyance: Finds that, according to a witness adduced by the defenders, viz., Zachariah Cox, goods railway agent at Stafford, the train conveying the said cattle reached Stafford at 3 p.m. on 13th March, the day succeeding that on which they were received by the defenders, and he (Mr Cox) ‘never saw a waggon of the size of the waggon in which these animals came, so much overcrowded as it was,’ and he attributed the death of the two animals belonging to the pursuer to the overcrowded state of the waggon: Finds it is not proved nor alleged that any sustenance or drink was supplied to the said cattle during the said journey: Finds that the pursuer suffered loss through the non-delivery of the said two cattle to the amount of £27 concluded for: Finds, as matter of law, that the defenders having failed to deliver, according to contract, two of the said thirteen cattle received by them for conveyance and delivery as aforesaid, and the overcrowding of the defenders' cattle truck or waggon, caused or permitted by them, being at
Page: 280↓
their risk, and an act of gross negligence or default of them or their servants, the defenders are liable for the said loss: Therefore dismisses their appeal, and affirms the interlocutor of the Substitute appealed against, in so far as it repels the defences, and decerns for the said £27 and interest, and finds expenses due to the pursuer.” The Railway Company advocated.
Solicitor-General ( Young) and Johnstone for advocators.
Gordon and Scott for respondent.
At advising—
The pursuer says that he went to the railway station the day before he despatched these cattle to Norwich, and bespoke a 15 foot truck for them. He was not inexperienced in such matters. He says in his evidence that for ten or twelve years he has been in the practice of trucking cattle to Norwich by the defenders' railway. He was assisted by another person, M'Michan, from whom he bought the cattle, and who also has often been engaged in trucking cattle. In consequence of his instructions on the 11th March, a waggon was provided of the specified dimensions, a special waggon being appropriated for him, and numbered G. and S.-W. 2316, which was then engaged by the pursuer to go to Norwich, and to carry his cattle thither. In pursuit of this arrangement, he comes with his cattle to the railway station on 12th March, accompanied by M'Michan, and puts them into this truck, and sends them off without any one to take charge of them. It is said that the station-master did not suggest to him that he was putting too many cattle into one truck; and I take it as being the fact that he did not, though he himself says he did. Taking it so, the pursuer, a man of skill and experience in the matter, thought it proper and safe to put thirteen cattle into one truck. If the station-master had remonstrated he would have been liable to the observation that he was trying to make more money for the company, for, of course, the pursuer would have had to pay more for two trucks than he was paying for one; or, even if it had not been necessary to have two trucks, the pursuer would have had to pay more for a larger truck, and more profit would have gone to the railway company. The plain inference therefore is, that the pursuer judged for himself, and thought this truck sufficient to carry thirteen cattle, or, if he had doubts on the subject, he at least resolved to take the risk not only of sending thirteen cattle in a 15 foot waggon, but of sending them without any one to take charge of them. Now, let us consider, after this trucking is concluded, what is the duty incumbent on the railway company. It appears to me to consist in this, and in this only, that they should make this loaded truck part of a train, and carry it along their own line to its termination, and then procure that it should be conveyed along those other lines which it required to traverse in order to reach Norwich. It has been suggested that the death of the cattle in this case may have been caused by neglect of the cattle on the journey by not providing them with water or food. I see the Sheriff has a finding that the railway company have not proved that they provided food or drink to the cattle during the journey. It is the first time I ever heard that that is an obligation on a railway company. I think that is an obligation they are not in any way bound to perform, and one they have no means of performing. Of course what follows is, that if cattle are sent off without any one to take charge of them, that just means that they shall do without food or drink to the end of the journey. That may be very improper, but it is not the duty of the railway company to provide sustenance for the cattle. Now, when these cattle came to Stafford, it was found that three of them were down, and were being trampled on by the others. One was dead, another was on the point of dying, and another was very much injured. The goods agent at Stafford station, who must have great experience in such matters, gives it as his opinion that these animals certainly came into this unhappy state because the truck was overcrowded. No other cause is suggested, except want of food and water, which was not the fault of the company. Now, if it was the overcrowding which caused the loss of the cattle, the question is, who is to bear that loss'? If this case had to be decided by principles of common law there is not much difficulty. But we cannot lay out of view that here there is a special contract, and we are bound to consider, in dealing with it, whether it is a reasonable and just contract, under the provisions of the Railway and Canal Traffic Act (17 and 18 Vict., c. 31, § 7). I am not prepared to say that, if a contract be signed so as to exempt a railway company from liability for negligence on the part of their servants, that would be a just and reasonable contract. I should rather say that that could not be sustained in general under the terms of the Act. But here the railway company do not found on this contract for protecting themselves from negligence of their servants. Their case is that there is no blame imputable to them or to their servants, and that the fault is entirely on the side of the pursuer; and if so, we are not much troubled with construing the terms “gross negligence.” If such construction were necessary I should not be inclined to attach much importance to the presence of the word “gross.” But the question does not turn on that word, and it is not necessary to construe it. The part of the contract on which the railway company rely is this, that they are not liable for damage in loading, unloading, conveyance, or otherwise, &c., without reference to the special question whether negligence on their part, or on the part of their servants, would make them answerable. Taking the contract in that way, it seems quite reasonable in the circumstances, for the transactions between the railway company and this pursuer—apart from the special contract—must be looked at to see if the special contract is reasonable or not. Now, I have already said that I think the pursuer hired this particular truck to go to Norwich. If he had so done, he was placed in much the same position as if it had been his own truck; and we know well that there are many persons, coalmasters and others, who send goods by railway and have their own trucks for the purpose. When, therefore, this pursuer hired the truck in question, I think it became his truck for the time, and for the purposes of that journey. Now, if a man loads his own truck, and then hands over to the railway company, not the goods, but the truck itself, that is very different from the case where goods are sent to the office of a company with general directions for their conveyance. And it appears to me by no means unreasonable, with reference to such a contract, that the company should
Page: 281↓
The other Judges concurred in holding that, in the circumstances of the case, the railway company were not liable for the loss of the cattle.
Agents for Advocators— Gibson-Craig, Dalziel, & Brodies, W.S.
Agent for Respondent— W. S. Stuart, S.S.C.