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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clark v. Caledonian Railway Co. [1877] ScotLR 15_165 (30 November 1877)
URL: http://www.bailii.org/scot/cases/ScotCS/1877/15SLR0165.html
Cite as: [1877] SLR 15_165, [1877] ScotLR 15_165
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SCOTTISH_SLR_Court_of_Session
Page: 165↓
Court of Session Inner House First Division.
Sheriff of Lanarkshire.
v.
Facts:
An engine-driver employed in driving his engine on a line over which the railway company whose servant he was had running powers, when stopped by the signals outside a station, left his engine for the purpose of proceeding to the signal-box to get information about the working of the line. There was a pilot-man with him on the engine to assist, as he had had no experience himself on that part of the line. In returning from the signal-box he fell over a bridge which was not protected by a parapet, or by wing-walls at the ends, and which was not lighted, and death resulted from the injuries. In an action of damages for loss thereby sustained, brought against the railway company on whose line the accident occurred— held that the Company not liable, because, in the circumstances as proved—(1) there was no obligation upon them to have the bridge fenced; and (2) there had been an unusual risk. incurred, and no proper precautions taken to avoid accident by the deceased.
This action was raised by the widow of Thomas Clark, an engine-driver in the employment of the Glasgow and South-Western Railway, against the Caledonian Railway Company, for reparation in respect of the loss incurred by her through the death of her husband upon that line.
The Glasgow and South-Western Railway Company had running powers over the defender's line between Carlisle and Gretna Junction. The deceased had, in the year 1871, been employed for some time on that part of the line, but for some years afterwards had not been employed there. On the 5th of February 1877 he was appointed driver of a fish-train between Carlisle and Ayr, which passed Gretna Junction, and proceeded on the up journey as far as Carlisle. The return journey was made at night, and Clark being inexperienced in that part of the line, another engine-driver, named Grierson, was sent on the engine with him to teach him the signals and generally to pilot the train. They reached Gretna Junction about 3.25 A.M. on the 6th February, the night being very dark. As the red danger-signal was against the train, it was then drawn up. Clark thereupon remarked to Grierson that on the up journey on the previous day he had not had an opportunity of observing the junction signals, and said he was going to examine them, they having been altered a few days previously. He accordingly started northwards along the line, but without a lamp, Grierson having declined to allow him to take the only lamp there was, as it was required for the engine. After safely reaching the signal-box, and making the inquiries he wished, he started to return to his engine. On his way back he was killed in the manner explained in the following findings of the Sheriff-Substitute ( Erskine Murray):—“ Finds (13) that between the station buildings and the pointsman's box the main line of the defenders, the Caledonian Railway
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Company, crosses over the Longton Road by a bridge 24 feet high, the width from side to side of the road under the bridge being about 20 feet: Finds (14) that on the west side of the line a beaten track, though not a made footpath, leads from the station buildings to the pointsman's box, along which the railway employees are in the habit of going, the only other way being along the six-foot way or between the lines of rails, either of which is more dangerous than the path by the side: Finds (15) that there is a low parapet blocking course on the west side of the bridge, about 13 inches in height, but no other rail or fence, and no fence or partition at all along the tops of the wing-walls sloping from the bridge down to the margin of the road on either side: Finds (1G) that the searchers found Clark lying on the Longton Road.… close to the southern wing-wall, having evidently fallen either over the parapet of the bridge or one or other of the wing-walls.” Clark subsequently died from the effects of the injury, and this action was raised for £700. It was stated in the summons that the death occurred “through the culpable negligence and gross carelessness of the defenders, or others for whom they are responsible, in not having a sufficient fence on the sides of the said bridge, or a proper road along the railway across said bridge, or a light or lights thereon, or one or other of them; or otherwise, not having the said bridge sufficiently protected against accident to persons requiring to walk along the same.” It was admitted by the defenders that Clark met with the injuries narrated. Their defence was a denial of the allegations in the summons. Further, it was “explained and averred that the deceased Thomas Clark was ignorant of the line of railway on which he was travelling when in the employment of the Glasgow and South-Western Railway, and that he was not acquainted with the proper working of the traffic on said line, or with the signals on said railway, or the system on which they were worked, and was entirely ignorant of the said railway sidings, stations, and other conveniences at and before the date of said accident, which was his first trip as an engine-driver on said railway; and further, that he had no right to leave his engine on the date in question, or to be where he was when he met with the accident, and that his death was caused by and through his own ignorance, carelessness, fault, and want of precaution.” It was further pleaded that the damages claimed were excessive.
The Sheriff-Substitute ( Erskine Murray) pronounced an interlocutor, which, after various findings, including those narrated above, proceeded:—“Finds, in the whole case and in law, (1) that defenders are in fault in not fencing or protecting in some way the west side and wing-walls of the bridge in question, considering that it lies between a junction station and the pointsman's box, in a position which employees of both railways, including persons newly appointed, have occasion to walk past in the dark when engaged on their lawful business, and thus exposing them to unnecessary, and in the case of men new to their work, entirely unexpected danger: Finds (2) that Clark was not himself guilty of any contributory negligence, he being quite right in desiring to make himself thoroughly acquainted with the signals, and taking the best opportunity that he was likely to have, and Grierson being in charge of the engine; and he taking the path where least danger was to be expected on the whole, and the moveable lamp not being at his disposal: Therefore finds defenders liable to the pursuer in the sum of £100 sterling in name of damages in respect of the death of her said husband, for which sum, as libelled, decerns against the defenders.”
The pursuer and defenders both appealed to the Sheriff ( Clark), who adhered, but assessed the damages at £150. He added the following note:—
“ Note.—The real question in this case is, Whether the railway company were in fault in not having the bridge properly fenced at the place where the accident occurred, and whether, that being so, there was any contributory fault or negligence on the part of the deceased. I think that the fault on the part of the railway company is clearly established. Their own witnesses admit that the bridge was dangerous except for those who were their own employees, and familiar with the locality, but the deceased plainly did not fall within that category. The averment of contributory fault is not made out. In the first place, it is not properly—that is, specifically enough—raised on record; but, apart from that, it is not proved. The man was emphatically in the discharge of his duty, and did what, if it were more generally followed, would save the public from the consequences of many a collision.
I agree therefore with the Sheriff-Substitute as to the necessity of awarding damages, but I think in the circumstances of the, case the amount awarded is insufficient, and have increased it to £150.”
The defenders appealed to the Court of Session.
Appellant's authorities— Robertson v. Adamson, July 3, 1862, 24 D. 1231; Seymour v. Maddox, January 23, 1851, 20 L.J., Q.B. 327.
Respondent's authorities— Indermaur v. Dames, February 26, 1866, 1 L.R., C.P. 274, affirmed in Exch. Chamber, February 6, 1867, 2 L.R., C.P. 311”; Corby v. Hill, May 25, 1858, 27 L.J., C.P. 318.
At advising—
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The point the case raises is, whether in a question with the deceased there was a duty on the defenders to have the bridge fenced, and whether in neglecting to do that the death can be said to have been caused by the defenders? Of course the present case belongs in these circumstances to a totally different class from that where the death of a passenger is occasioned while he is using the line or station accommodation, for there there is an obligation arising from contract, while here there is not. Again, it must be observed that the case is not the same as that which might have occurred in the case of servants of the Caledonian Railway Company. They had servants passing along the line at that place—not only platelayers and gaugers, but many others—and I take it it would have been difficult to hold that in a case with one of their servants there would have been responsibility on the part of the Company.
The law stated in the case of Seymour v. Maddox, January 23, 1851, 20 L.J., Q.B., 327, is authoritative. It is settled that there is no obligation thrown on the Company in the case of their own servants to make their premises secure from the possibility of accident, particularly as their servants have opportunity to become acquainted with the line. I think it would be extremely difficult to say that this engine-driver, who was not even a servant of the Caledonian Railway Company, but who merely had (and this is as much as can be said) a reasonable right to go where he did, should have higher privileges than servants of the Company. On the facts there is no doubt that the deceased died in a peculiarly painful way, for at the time the accident occurred he was engaged in acting in a careful and zealous way in the discharge of his duty, and was actuated by a laudable anxiety to become acquainted with those signals which he could not inspect on his down journey. But this cannot assist us in settling the legal obligation on the Caledonian Railway Company to have their bridge fenced.
I have come to the conclusion that there is a failure to instruct neglect of a duty on the part of the Company to have the bridge fenced as the pursuer says it should have been. It is important to notice that on the return journey the train stopped by mere accident. The natural course would have been that the train should have gone right on, or, if there had been any stoppage, it would have been for some such purpose as that of taking on waggons, and the duty of Clark would have been to attend to that. But the train did stop, and what happened? Clark voluntarily took a very unusual mode of getting information as to the signals. I think the course he took was peculiarly unusual, when we regard the time at which he did it. It is not the duty of an engine-driver to visit signal-boxes, but certainly it is unusual to choose the darkest hour of a dark night to walk along the line. I should apprehend that if a servant takes an unusual course and an unusual risk, it cannot be the law that he may transfer the risk of his proceeding from his own shoulders to those of his employers. On that ground alone I should be of opinion that, as the proceeding was not fairly within Clark's duty, when an accident occurred he could not insist that there was an obligation on the defenders to secure him against an unusual risk. And on that ground alone I should be of opinion that this judgment should be recalled.
But there is a second ground of defence. I do not think, assuming Clark was entitled to take this unusual course, that he used sufficient precautions. The night we know was very dark, and sleet was falling. In such circumstances it appears to me that he ought either to have provided himself with a lamp, or, if he could not get one, he should have refrained from going. It appears to me that to go along any part of a railway line at night is attended with risk. In the evidence it is shown that this construction for bridges is a common and ordinary one, and it is merely one of the many dangers of walking along the line in the dark that you may fall over an unprotected bridge. The only reasonable protection in this case was to take a lamp. Grierson says he would not allow him to take the lamp, but this does not affect the question. If he could not get a lamp, he was bound to refrain from going. In either view, there was an absence of reasonable precaution on Clark's side.
I therefore think that this interlocutor should be recalled, and that we should find the Company to be under no obligation to fence or light such bridges as these, and that the defenders should be assoilzied.
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It is asserted that a servant of the Company might sometimes have occasion to cross the bridge, but it does not follow that even a servant would be justified in passing over it on a dark night without a light. Much less would a servant who was unacquainted with the line be justified in passing over it without a light. The danger was very great; it is bad enough to walk along a line in the daytime, but for anyone to attempt to walk along an unfenced railway in the nighttime without a light is most rash and foolhardy. That was the cause of the accident. It might be said that there was fault on both sides if there were an obligation on the railway company to fence, but that would only show contributory negligence. This is a sad case no doubt, but I fear it was the man's own fault.
The Court pronounced an interlocutor, which, after recalling the previous interlocutors and making the findings of fact contained in the Sheriff-Substitute's interlocutor, proceeded:—
“Find in law that the death of the said Thomas Clark was caused not by the fault of the defenders (appellants), but by his own rashness in walking along the line of railway with which he was not familiar, in a dark night without a lamp, and not in the performance of any act or duty which he was under an obligation to do or perform: Therefore sustain the defences, and assoilzie the defenders, and decern, ” &c.
Counsel for Pursuer (Respondent)— Asher—Brand. Agent— Adam Shiell, S.S.C.
Counsel for Defenders (Appellants)— Mackintosh—Pearson. Agents— Hope, Mann, & Kirk, W.S.