Scottish Court of Session Decisions

John Gourlay, bobbin-turner at Dalbeattie, sued William Rae for the sum of £250 as damages for injuries sustained by him in consequence of his being knocked over by his gig on 20th November 1868. The following minute was lodged for the defender:—“The procurator for the defender stated that the defence was a denial of the libel, except that the pursuer was accidentally knocked down in a crowd, on the day slated in the summons, by the defender's gig, but through no fault of the defender. The defender offered to the pursuer to pay him the amount of the weekly wages he was earning at the time of the accident for the time he was off work, also the amount of the account due to the surgeon who attended him, and also the expenses then incurred, and he now renews that offer to the pursuer, and will also pay the judicial expenses as betwixt party and party to this date.” As this tender was not accepted, a proof was led, which adduced the following state of circumstances. The polling for a Member of Parliament took place that day in Dalbeattie, and between 3 and 4 p.m. Rae was driving home in a gig drawn by a quiet horse belonging to himself, and which he was accustomed to drive. He was perfectly sober, and was driving slowly and carefully on the proper side of the road, taking pains not to injure any of the children running about on the street. Gourlay, who had had one or two glasses of whisky that day, was standing on the side of the street with his back towards it, and not being observed by Rae was driven against and knocked over by the wheel of his gig. Rae, who was not asked why he did not observe Gourlay, at once pulled up when the accident occurred, but being told there was little wrong, drove on. The bulk of the testimony shewed that Gourlay was standing a few feet on to the roadway talking to some friends, and that had he been an inch farther off the wheel would not have touched him. There was no crowd on the street at the time so as to prevent Rae driving at the pace he was going at at the time.

The Steward-Substitute ( Dunbar) estimated the sum tendered as amounting to £5, 10s., and gave decree for this sum, with expenses as between party and agent up to the closing of the record, after taxation by the auditor. The Steward ( Hector), considering Rae more in fault than the Substitute had done, assessed the damages at £10.

Rae appealed

Millar, Q.C., and Scott for him.

J. C. Smith and Strachan in answer.

The Court recalled both interlocutors. They held that it was plain the defender had his attention employed in avoiding the risk of injury to the numerous children running about, and that it was quite in the power and the duty of Gourlay, as being a grown-up person, to keep a look out. The tender by Rae was very creditable to him, and it did him much credit that he still offered to implement it; and but for it he must have been assoilzied simpliciter, as in law he was not liable at all. They therefore gave decree against the defender for £5, 10s. of damages and £3, 9s. 10d., being the expenses of process as between party and agent up till the 15th January 1869, when, the record was closed.

The following was the interlocutor pronounced:—“ Edinburgh, 26 th January 1870.—The Lords having heard Counsel on the closed record, proof, and whole process, recal the interlocutors of the Sheriff and Sheriff-Substitute since the close of the proof: Find that on 20th November 1868, between 3 and 4 o'clock afternoon, the pursuer, while standing on the carriage-way of the High Street of Dalbeattie, was injured by the wheel of the dog-cart driven by the defender coming in contact with the pursuer's person: Find that the said injury was not caused by the reckless, careless, or furious driving of the defender: Find it not established that the said injury was caused by any fault or negligence of the defender; Therefore find in Jaw no ground of liability or reparation for the said injury has been established against the defender. But, of consent of the defender, decern against him for payment of £8, 9s. 10d., being equivalent to the value of the tender made by him in his defences: Find the pursuer liable in expenses in this Court and also in the inferior court subsequent to 18th January 1869, and remit to the auditor.”