Scottish Court of Session Decisions

This was an action of damages for bodily injury by Denniston Galloway, Greenock, against Walter King, contractor, Greenock.

The pursuer's statements were shortly as follows:—On the afternoon of Sunday, 11th September 1870, the pursuer, who is sixteen years of age, left his house to take a walk. He met ten or eleven other lads, and proceeded with them to the public park of Whinhill, going along the hill till they came to a dyke surrounding an adjoining piece of ground occupied by the Water Trust of Greenock, on which the Water Trust has recently erected new water filters. The filters had been constructed by the defender under contract between

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him and the Water Trust. For the convenience of his workmen, the defender had erected two huts on the ground. One of these huts was now used as a receptacle for old tools and other rubbish. The door was unsecured and open, and the public had been in the habit of entering the hut at all times since the beginning of 1869, without objection by any one. The piece of ground on which the huts stood was open, and frequented by the public, and access could be had to it by two gates in the wall surrounding it. as well as by a set of steps. A heavy shower coming on, the pursuer and his companions crossed the wall and took shelter in the hut. When they entered, a number of old tools and apparently valueless materials were lying about, and among them a tin can, with nothing about its appearance to indicate that it contained a dangerous explosive substance. One of the lads, without the pursuer's knowledge, struck the can with a hammer. The can proved to contain nitro-glycerine, and a terrific explosion at once took place. Eight of the young men were killed, and the remainder, including the pursuer, were more or less seriously injured. The pursuer was carried to the infirmary, had a leg amputated, and is permanently disabled from earning a livelihood. He claimed £1000 of damages for the injuries sustained, as he alleged, in consequence of the culpable negligence of the defender, or those acting under him, in allowing a dangerous explosive substance to lie about the floor of the hut.

The defender pleaded:—

“ Preliminary.—1. The action is irrelevant, and falls to be dismissed, in respect—(1) It is not averred that the defender, or any one for whom he is responsible, placed the alleged explosive substance in the alleged place of danger; (2) It is not averred that the premises in question were the property of the defender, or were in his charge or under his control, and that he knew of the said substance being allowed to remain in a dangerous place: and (3) It is not stated how the explosion took place,—whether spontaneously or through the act of any one; and no facts or circumstances are averred connecting, or tending to connect, the defender with the alleged injuries.

On the Merits.—2. The pursuer is barred from insisting in the present action, in respect the injuries sustained by him have arisen through his own fault, in as much as—(1) The explosion was the result of his own wanton conduct and that of his associates; (2) His injuries were sustained when he was in a place where he had no right to be, and in consequence of his being there. 3. The injuries sustained by the pursuer not having been caused by the fault of the defender, or of any one for whom he is responsible, he is not liable in damages.”

The Sheriff-Substitute ( Tennent) found that the pursuer had not set forth a relevant case, inferring liability in damages on the part of the defender; sustained the third preliminary plea for the defender; and dismissed the action.

The pursuer appealed, and the Sheriff ( Fraser) adhered.

“Note.—The pursuer was allowed to amend the record, the defender not objecting. As amended, it is somewhat more specific than it was when the Sheriff-Substitute pronounced his interlocutor; but still it is irrelevant. After studying this record in the light of the English and Scotch cases upon this subject, the Sheriff is unable to hold that there is anything stated which would render the defender responsible in damages for the injuries which the pursuer sustained; and enough is admitted on the record to enable the Court to dispose of the case upon the relevancy, and without a proof.

The pursuer and a number of other lads went into a hut the door of which was open, and into which they had no business whatever to go. They were simply trespassers, and did wrong in entering into this hut, which was not in their way, and with the contents of which they had no right whatever to interfere. One of the band, however, proceeds to strike a can, the contents of which turned out to be nitro-glycerine, and in a moment there was an explosion, and all the lads except one suffered injuries or were killed.

“Now, what legal obligation was there upon the defender to the pursuer or his associates? What duty was it which he violated, and for the breach of which he must now pay damages? It is said that nitro-glycerine is very explosive, and therefore dangerous, and that in consequence of this all due precautions ought to be taken for the safety of the public. This is quite true; and if the defender had placed a can of nitro-glycerine at the way-side, where the public must pass and repass, and where a passer-by would naturally (seeing the deserted article) take it up with the view of discovering its contents or its owner, and an explosion had followed, it might be very fairly concluded that the defender, in that case, was guilty of such reckless or thoughtless conduct as to render him culpable and liable in damages. But the present case is exactly the reverse of that. In a field to which the public have no access by right (although it appears they often go into it), and in the midst of that field, there is a hut to which no one has a right of access but the defender, and in this hut he keeps his private goods, which are interfered with by a trespasser, who enters therein without leave or licence,—such is the case for the pursuer as against the defender, the only point being that the defender had not locked the door—which is no point at all. A man, may, if he please, leave the door of his private house open, but this will not entitle a passer-by to enter and meddle with his goods. If the defender had left his gun loaded in the hut, an action of damages would be maintainable against him (supposing the pursuer had been shot by one of his companions with the gun) if the present action were sustained as relevant.”

The pursuer appealed to the Court of Session.

Shand and Hall for him.

Watson and Maclean in reply.

There was a long debate, especially on the questions of law raised by the defender's first and second pleas on the merits.

On 31st January 1872 the Court recalled, in hoc statu, the interlocutor appealed against, and allowed a proof before answer.

A proof was accordingly taken before Lord Deas.

It was proved that the defender, or rather his son, Mr James King, who superintended the works at Greenock, had ordered a sample of nitro-glycerine, to be used for blasting. A small portion of it was so used, but the workmen did not find it answer, and accordingly the can containing the rest was for some time kept in a powder magazine at Whinhill. In August 1869, Mr King ordered

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his foreman to get the nitro-glycerine destroyed. The latter, along with another man, took the can to a stream, where they turned the can upside down, till, as they believed, its whole contents were poured out into the water. The can, supposed to be empty, but really still containing some of the nitro-glycerine, was then put in the hut, where it remained till the accident. The explanation of the fact that some of the substance remained in the can after its contents were believed to be poured out, is to be found in the scientific evidence. Dr Stevenson Macadam deponed that nitroglycerine, though liquid, as it is used for blasting, has a tendency to become solid at a temperature of 40 or 50 degrees Fahrenheit. When the temperature falls to this point, it does not necessarily follow that the whole will solidify, but a part would be likely to form a solid substance in a vessel, while another portion would remain liquid.”

The view which the Court ultimately took of the case renders it unnecessary to state the import of the rest of the proof. It was proved that the public were not allowed on the ground in which the huts stood, though members of the public may not unfrequently have gone there; and that there was a notice board warning off trespassers.

The case was again heard on the proof.

At advising—