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Cite as: [1871] SLR 8_325, [1871] ScotLR 8_325

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SCOTTISH_SLR_Court_of_Session

Page: 325↓

Court of Session Inner House Second Division.

Friday, January 27. 1871.

8 SLR 325

Caledonian Railway Company

v.

Wyllie.

Subject_1Reparation
Subject_2Damages
Subject_3Culpa
Subject_4Master and Servant — Collaborateur.
Facts:

Circumstances in which a railway company was found liable to a cattle drover for injuries sustained by him when engaged in assisting the servants of the railway in trucking cattle at their station. Held that every reasonable precaution must be observed by the company's servants in shunting trucks before freedom from liability for accident can be secured.

Held that there was no common employment between the pursuer and the company's servant in the sense in which it would have relieved the company from liability, the pursuer being employed in his own master's business, giving, as the servants of the railway were taking, delivery; and that, under the circumstances, it was a duty incumbent upon him to assist in trucking the cattle, and that, therefore, be could not be looked upon as a volunteer in the service of the company.

Headnote:

This was an appeal from the Sheriff-court of Lanarkshire. The pursuer, Thomas Wyllie, was a drover in the service of Mr Dunlop, cattle-dealer, Stewarton, and raised the action for £200, as damages due to him by the Caledonian Railway Company for loss, injuries, and suffering sustained by him under the following circumstances, viz.:—.
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While employed in his duties as cattle-drover on 26th October 1868, between six and eight o'clock P.M., at the “cattle bank” of the defenders’ station at St Rollox, Glasgow, and when engaged putting cattle of his master's into a truck, with the assistance of one of the defenders’ servants and two other persons, an engine, pushing before it some other trucks, came into collision with the truck at which the pursuer was working, and drove the door of that truck against him, threw him to the ground, and also broke his left ancle, and otherwise severely injured him. The pursuer averred that no previous or sufficient warning of the coming of the engine had been given, and that the accident was the result of gross negligence on the part of the defenders or their servants. He farther stated that his health and physical system were seriously and permanently injured, and that he had suffered severe pecuniary loss in consequence of his being unable to resume his customary avocation. The defenders denied all fault or negligence in themselves or their servants, and farther claimed exemption from liability, on the ground that the pursuer and their servants were, in the particular circumstances, fellow-workmen, and engaged in the same common employment.

The Sheriff-Substitute ( Dickson) allowed a proof, from which it appeared, that it was customary for an engine, coming to the “cattle bank,” to whistle when about 50 yards off, and for a cry of “cattle bank” to be made when it came nearer, and also for the brakesman to show a light. It was also proved that the night in question was pretty dark, with a considerable breeze blowing in an opposite direction from that in which the engine came. The evidence was conflicting as to whether the usual signals were given, and as to an additional warning which the defenders’ foreman was stated to have given to those engaged in trucking.

The Sheriff-Substitute sustained the defences, with the exception of that of common employment, on the ground that all the ordinary precautions had been complied with, and that the fault, if any, lay with the pursuer.

The Sheriff ( Glassford bell), on appeal, recalled the Sheriff-Substitute's interlocutor, and found the pursuer entitled to £70 in name of damages, holding that no blame was imputable to the pursuer; that the collision ought to have been avoided; and that there was no proof of sufficient warning having been given.

The defenders appealed.

The Lord Advocate and Shand, for them, argued that there was no fault on the part of the company's servants, and that the usual precautions had been taken. Moreover that, supposing there had been fault, the defenders were not liable, as the pursuer was engaged in a common operation with their servants, and therefore he undertook all the risks. The following authorities were quoted:— Degg v. Midland Rail. Co., 1 H. and N. 773; Potter v. Faulkner, 31 L. J. (Q. B.), 30; Wilson v. Merry § Cunningham, 6 Macph., H. L., 84–89; Paxton v. N. B. R. Co., 1st Nov. 1870, 8 Scot. Law Rep. 58; Abraham v. Reynolds, 5 H. and G. 143; Southcote v. Stanley, 25 L. J. 339; Morgan v. Vale of Neath Rail. Co., 1 L. R. (Q. B.), 149; Smith on Master and Servant, p. 200; Godefroi and Shortt on Railways, p. 408.

Scott and Strachan, for the pursuer, maintained that the practice of the company, even though proved to have been complied with, did not fix the law of the case. The precautions, if taken, were evidently not sufficient. The pursuer was lawfully present in his master's service, and he could not be held to have a contract without guarantee with the defenders. The proof here clearly showed that the precautions had not been taken, and the defenders were liable accordingly.

At advising—

Judgment:

Lord President—I believe I may say that we have all felt this case to be one of very considerable difficulty, upon the import of the proof; and so it seems to have been dealt with in the Inferior Court. However, we have had the satisfaction of arriving at a unanimous conclusion. The pursuer in the action is Thomas Wyllie, a servant of Mr Gabriel Dunlop, cattle-dealer, Stewarton, who, on the 26th October 1868, while in pursuance of his duty as Mr Dunlop's drover, went to the station belonging to the Caledonian Railway at St Rollox, in charge of some cattle, for the purpose of having them placed upon trucks there, and conveyed along the company's line to Aberdeen. After he arrived at the defenders’ station, he proceeded, along with certain servants of the company, to the cattle bank to assist in trucking the cattle, and while he and they were engaged in this operation, he sustained the injury, in respect of which this action is brought.

The mode of trucking cattle at this station is well ascertained in the evidence. The cattle are driven on to the cattle bank, from which they pass to the truck which is drawn up alongside it to receive them; and in order to connect the truck to the embankment in such a way as to prevent any injury to the cattle as they pass from one to the other, the side of the truck next the bank is let down, so as to form a sort of gangway between the two. Now, in the course of driving the cattle into one of the trucks, the pursuer had occasion to be standing on the west side of this gangway, and while he was so standing, an engine from the east side came into the siding where the cattle bank is situated, driving before it some waggons and one truck which was loaded with sheep, which truck was intended to be unloaded there, and to be afterwards used for some of the cattle which the pursuer had in charge. The engine was driving these trucks before it; now, although the engine came in at a very slow pace, it was not so slow but that the truck with the sheep in it struck that into which the cattle were being put. It struck it very gently indeed, but with sufficient force to move it about three yards, and this brought the side of the truck, which had been let down, in contact with the pursuer's legs and ancles, so as to throw him down and break one of his legs, and otherwise injure him.

Now, these being the circumstances in which the accident happened, two questions arise which must be answered to enable us to dispose of the case. The first is a pure jury question—namely, Whether the injury sustained by the pursuer was caused by any negligence or fault on the part of the railway company's servants?

The second is a mixed question of fact and law —namely, Whether, assuming that it was so caused, the pursuer, in the circumstances of the case, and looking to the nature of the employment in which he was engaged, is entitled to succeed in this action?

The first question, of course, depends entirely upon the import of the proof which is before us. There is no doubt, I believe, that if people trucking cattle have a sufficient warning of the approach

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of a train into the siding in which they are engaged, it is their duty to stop until the train is stationary, or has completed the operation for which it came in. It stands to reason that this should be so, as it is not easy or even possible for the engine-driver and his assistants to calculate distances to such a nicety, in the shunting of waggons, as to avoid all risk of danger to those engaged in other work upon the siding. I am very far, therefore, from saying that it is not the duty of those in charge of the engine and trucks coming up, to calculate these distances with such care as to avoid accident. I think that this should certainly be done to the utmost extent that it is possible. But while there is this duty incumbent upon them, there is also a duty incumbent upon those persons who are engaged on the stationary trucks or other work in the siding, themselves to take every reasonable precaution on their part, to avoid and get out of the way of accidents. I entirely approve therefore of the statements made by the company's servants, the witnesses Baxter and Dow. On the other hand, however, there cannot be the least doubt that it is the duty of the company's servants, who are coming into the siding, to give notice by signal to those who are at work on the siding. The recognised rule seems to be—(1) That the engine should whistle; (2) that the brakesman stationed on the front of the trucks coming in should call out as loud as he can; and (3) that, at all events when it is dark, lie should have a lamp with him, and wave it to show the approach of his waggons. I think that if any of these signals are omitted there is negligence on the part of the company's servants. But there is another precaution, which is also, in my opinion, of very great importance. The witness Baxter says—“When an engine pushing waggons comes up to waggons or trucks standing, it often knocks them on a little way.” But then he adds, “it should not do so if the truck has cattle in it, and the door or gangway is down. I have not often seen that happen.” Now, that suggests to us another precaution that should be taken by the driver—viz., to make sure of stopping short before striking the stationary waggons.

In this, therefore, as in many similar cases, there are a number of precautions which ought to be observed. Some of these may fail from accidental causes in having the desired effect, and yet the rest may succeed. And then, while as regards the people trucking, there was the duty incumbent upon them of attending to the signals and securing their own safety, there was also incumbent on those servants of the company, in charge of the engine and trucks being shunted, the duty of stopping short of the cattle truck which was being loaded, and of giving the three signals above mentioned. If they failed in any of these, I come to the conclusion that there was negligence on their part.

Now, with regard to the signals, I think that there is a conflict of evidence. Those engaged on the train all say that the engine whistled; they all say also that the brakesman shouted at the proper time, and warned the people on the cattle-bank, and farther that he showed his lamp. The people engaged in trucking, on the other hand, all say that they neither heard nor saw anything. But then it appears that there was a strong wind blowing right in the teeth of the engine and waggons, and the men on them admit that the whistle might not have been heard—the shout of the brakesman was very likely not to be heard either, particularly if the men at the cattle-bank were making the noise which is always more or less a necessary accompaniment of trucking cattle; and it would depend upon chance whether the lamp was sufficient of itself to attract attention. The display of the lamp is only really valuable in conjunction with the other two signals. Now, it appears to me that in such a boisterous night there should have been additional attention paid to these signals, in order to make them available, and there certainly is no evidence of that. It would not have been unreasonable if the driver, instead of only whistling once on entering the siding, had continued to whistle, and if the shout had been constantly repeated. The failure in this looks to me very like negligence, in the circumstances. But in addition to this, it must be noticed that the other precaution was not observed —viz., the coming to a stop in proper time. It comes out in the evidence that it is the duty of the brakesman in the front of the waggon to direct the driver by his signals, and that the driver is entitled to trust entirely to him. There was on this night a more than usual amount of care due by the brakesman in bringing the driver to a stop in time, and he failed to do so. On the whole matter, therefore, I have come to the conclusion that there was negligence on the part of these servants of the company, such as would entitle the pursuer to damages, provided he was not guilty of contributory negligence, which i3 not attempted to be made out, and provided he was not at the time acting as one of the companys’ servants.

The second question, therefore, resolves itself into this, was he at the time in the position of a servant of the company, so as to bar this claim? It is said, on the part of the defenders, that his duty to his master was concluded after he had brought the cattle to the loading place, and that when he helped the company's servants to truck them he was in the same position as a volunteer, offering and giving his assistance voluntarily and gratuitously. If that were so, there is authority for holding that he would place himself in the same category with the rest of the company's servants for the time, and could not, therefore, make the claim which he does here. But the question is whether he was in that position. It is in evidence that there an is undoubted practice, which grew up very soon after railways were opened, of servants of farmers, cattle dealers, and such like, assisting in trucking their master's cattle. Or it may be put in this way equally well, that the servants of the owner of the cattle are always in use to be assisted by the servants of the company in trucking the cattle under their charge. The reason of this is obvious, and the practice most intelligible. The railway servants are naturally not thoroughly accustomed to handle cattle, and it requires no little experience to handle them well. And certainly, if the mere driving cattle along a road is a work of difficulty and requiring experience, still more so must the operation of putting them on board what must appear to them an unknown and terrible place,—viz., a railway cattle-truck. It is not at all unreasonable, therefore, that the men who are constantly employed about them, and by whom they are accustomed to be handled, should be expected to give their assistance in trucking them. What then is the position of the owner's servants under these circumstances? I do not think that they are to be looked upon at all in the light of volunteers, giving their service voluntarily

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to the company. On the contrary, they are attending to their master's business and nothing else, and what I should say was, the relative position of these men and the railway company's servants is precisely this, that the one is giving and the other taking delivery under the contract of carriage. The servants of the dealer are giving delivery, and those of the company are taking delivery. It does not affect the question to say, that they are engaged in a common employment. All that is true of many other cases of giving and taking delivery. For instance, if I send my servant to a shop to purchase something, which he receives from one of the shopkeeper's employees, it is true that they are engaged in a common employment, but one is acting for the shopkeeper, and the other for me. And there is no common employment, in the sense that they are both doing the work of the shopkeeper, and are responsible to him, and that seems to me to be the exact position that the servants of the dealer and those of the company held here respectively. It would have been the same tiling if Mr Dunlop had driven the cattle himself, and it would be very difficult to contend that lie was, while assisting in trucking the beasts, in the position of a servant of the company. Well then, in the present case he was only doing the same thing by the hand of the pursuer, his servant. Therefore I come to the conclusion, on this second question, that Wyllie was not in a position at the time of the accident which forms any bar to his claim under this action, and being of opinion that there was negligence on the part of the company's servants, I am therefore for adhering to the Sheriff-Principal's interlocutor.

The other Judges concurred.

Appeal dismissed.

Solicitors: Agents for Appellants— Hope & Mackay, W.S.

Agent for Respondent— John Walls, S.S.C.

1871