Scottish Court of Session Decisions

This action, as originally laid, concluded for implement of an obligation alleged to have been undertaken by the North British Railway Company to employ the pursuer James Cook in light employment

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for the rest of his life, or for damages in breach thereof, or, alternatively, for damage for injuries received by him while employed by the Railway Company in 1846, for which he alleged that they were responsible.

The pursuer alleged—“On Saturday, 28th November 1846, the pursuer, having finished his work at Saint Margaret's, paid his fare to travel thence to Edinburgh, and proceeded as a passenger, between the hours of two and three o'clock on the afternoon of that day, in one of the Company's trains, towards Edinburgh. On reaching the incline at Rose Lane, Abbeyhill, the train came to a standstill, and was run into by a passenger train also proceeding towards Edinburgh. The collision was occasioned by the fault or culpable negligence and carelessness, or want of skill, of the engineer or engine-driver of the train in which the pursuer was, by his allowing the pump which regulates the supply of water to the boiler of the engine to remain open, whereby an undue influx of water and consequent suppression of the steam took place, and the engine and train were thereby brought to a standstill; and also in consequence of the carelessness, fault, and negligence of the engineer or engine-driver of the other train, also belonging to the defenders, not being on the proper outlook when he approached the train in which the pursuer was. The injuries sustained by the pursuer in consequence of the collision proved nearly fatal. The pursuer was carried home in a state of insensibility, and, after having been entirely incapacitated from work of any kind for eighteen months, he at length partially recovered, but it was found that the internal injuries he had sustained were of such a serious and permanent character that he would never again be able to perform any work except of a very light and easy description. He has suffered from these injuries ever since, and they still entirely preclude him from attempting the work of a blacksmith, to which he was brought up, or any other heavy work.

Whilst the pursuer was confined to bed, from the effects of said collision, the Railway Company directed every attention to be paid to him. In particular, they procured for him the medical attendance of Professor Alison and Doctors Hunter and George Hamilton Bell; they provided him with two nurses; they furnished him with an invalid's chair; they paid for his medicines, &c.; and they paid him his wages regularly during the whole period of his inability to work.

During the pursuer's illness, occasioned by said collision, he was repeatedly visited by Mr Lear-month of Dean, then chairman of the Company, by Dr Hamilton Bell, the deputy-chairman, and Mr Davidson, the general manager, all of whom, acting on behalf of the North British Railway Company, undertook as a compensation to the pursuer for his said injuries, and assured him that if he was ever able to work he should be constantly employed by the defenders, as long as he lived, at such light work as he might be able to perform. As soon as the pursuer had so far recovered from the effects of said injuries as to be able to walk about, Professor Alison wrote to the Board of Directors, and also to Mr Thornton, superintendent of locomotives, to the effect that the pursuer would be incapacitated, not by temporary weakness, but by permanent internal injuries, from doing any work for the future except of a light and easy kind, and that in the open air. On 28th September 1848 the pursuer was accordingly, and in implement of the undertaking and assurance above referred to, appointed by the defenders inspector of waggons at Leith. His duties were of an important and responsible, but physically easy character. The pursuer performed these duties efficiently and faithfully for a period of nearly twenty years. In 1868 the pursuer was removed from his post at Leith and transferred to the Waverley Bridge Station, at Edinburgh, where he was employed in the same capacity as before; but the work was more laborious, and he was, moreover, required to do night work. While thus engaged at the Waverley Station, he was falsely accused of having been intoxicated, or having otherwise misconducted himself, in or about 12th June 1869. In consequence of this accusation, he was dismissed by the Company from their service at or about the beginning of July of the same year; but the Company, on investigation, discovered the accusation to be totally unfounded, and they accordingly received pursuer back into their service in or about the month of December 1869. Meanwhile, however, the pursuer's office as inspector of waggons had been filled up, and the Company, instead of assigning to him work of the kind to which he had been so long accustomed, or any other such light work as he was alone fit for (and as they undertook to provide him with), sent him to Cowlairs Station, near Glasgow, where they required him to perform work to which his strength was quite unequal. The pursuer repeatedly called upon the defenders to give him work of a light nature, such as he was able to perform,—but this they refused to do. Notwithstanding frequent attacks of acute pain, resulting from the internal injuries sustained in consequence of said collision, and the heavy work the defenders gave him to perform, the pursuer persevered in his new employment until February 1870. when he was at length compelled to succumb and abandon his employment. Since that date the pursuer has applied in every legitimate way to the Company for such light and suitable employment as they were bound to give him. The Company, however, took no notice of the pursuer's applications until February 1871, on the 24th of which month he received a letter from the secretary, informing him that “the directors, after full inquiry, declined to re-employ him.”

“In consequence of the injuries sustained by the pursuer, in the manner above stated, he is now unable to earn his livelihood, and moreover he has a large family to support, and he estimates the damage, loss, and permanent injury he has sustained through the culpable negligence of the defenders, or those for whom they are responsible, at £1000 sterling. The present action has been rendered necessary in consequence of the failure on the part of the defenders to employ him during his lifetime at such light work as he might be able to perform. But for this undertaking on their part, or on the part of those for whom they are responsible, shortly after the pursuer received the injuries above condescended on, he would then have raised his action against the defenders for compensation for said injuries.”

The Lord Ordinary pronounced this interlocutor and note:—

Edinburgh, 1 st December 1871.—The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, finds that the allegations of the pursuer are not relevant or sufficient to support the action as laid, and therefore dismisses the same, and decerns: Finds the defenders entitled to expenses, allows an account

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thereof to be lodged, and remits it when lodged to the auditor to tax and report.

“ Note.—The summons as it came into Court, and as it was first brought under the consideration of the Lord Ordinary, contained two alternative conclusions—the first for implement of an alleged obligation, whereby it is said that the defenders undertook to employ the pursuer constantly in light work, and for payment of £250—and the second for payment of £1000 damages.

It was explained on the part of the pursuer, and the record shows, that the first of these alternative conclusions was founded on the assumption that the defenders had undertaken and bound themselves, by way of compensation for injuries the pursuer had sustained through their fault in 1846, to employ him in light work so long as he lived and was able for it, and that the defenders had recently broken that contract, and refused to go on with it, and were, consequently, for that breach liable to him in the £250 concluded for; and that the second alternative conclusion was to meet the contingency of the pursuer failing to establish the first, and being obliged to resort to his remedy against the defenders in respect of the injury he sustained in 1846, just as if there had been no such agreement as that upon which the first alternative conclusion of the summons was founded.

But, after discussion, and when it is presumed the pursuer became sensible that he could not succeed in supporting his first alternative conclusion, he amended his summons to the effect of deleting from it that conclusion altogether; so that there is now only one conclusion—viz., that which was formerly the second alternative one.

It appears to the Lord Ordinary that the allegations of the pursuer are not relevant or sufficient to support the action as it is thus now laid.

The agreement, whereby it is said that the defenders bound themselves to employ the pursuer in light work, is averred in Article 4 of the condescendence. It is not, however, there said that the defenders were parties to that agreement, but only that certain individuals, ‘acting on behalf of the North British Railway Company, undertook, as a compensation to the pursuer for his said injuries, and assured him that if he was ever able to work, he should be constantly employed by the defenders as long as he lived.’ It was accordingly maintained by the defenders at the debate that they, a statutory company, who could only enter into contracts in conformity with their statutes of incorporation, could not be bound by any such verbal undertaking and assurance of the individuals referred to: and further, that the allegations of the pursuer are insufficient to admit of such an undertaking and assurance being rendered operative and effectual against the defenders, on the principle of rei interventus or otherwise.

These appeared to the Lord Ordinary to be very formidable objections to his sustaining the action quoad the first alternative conclusion of the summons, but it has become unnecessary to deal further specifically with that conclusion, as it has now been, on the motion of the pursuer himself, deleted, and the summons to that effect held as restricted or amended.

Then, in regard to the other, and only conclusion of the summons as it now stands, viz., that which was formerly the second alternative one, it appears to the Lord Ordinary that it cannot be sustained. He can find no relevant or sufficient allegations in the record to entitle the pursuer to maintain such a claim against the defenders, after the lapse of more than twenty years, during which not only was it not brought forward, but, according to his own showing, he had been receiving other compensation in lieu of it. It must, the Lord Ordinary thinks, be held, on the showing of the pursuer himself, that such a mode of redress as that now attempted to be enforced under the summons as it now stands was long ago waived and abandoned by him, and not only so, but also that in lieu of it he had betaken himself to another and different mode of redress, the full benefit, of which he has reaped for many years. In this view of the pursuer's action, as it is now laid, the Lord Ordinary has dismissed it, being of opinion that his allegations are irrelevant, and insufficient to support it.”

The pursuer reclaimed.

Mair and Kirkpatrick for him.

Solicitor-General and Maclean in answer.

At advising—