Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0372.html
Cite as: [1878] ScotLR 15_372, [1878] SLR 15_372

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SCOTTISH_SLR_Court_of_Session

Page: 372↓

Court of Session Inner House First Division.

[Sheriff of Renfrew.

Saturday, February 9. 1878.

15 SLR 372

Ralston

v.

Caledonian Railway Company.

Subject_1Process
Subject_2Expenses
Subject_3Sheriff Court
Subject_4Proof.
Facts:

In a cause in which it appeared to the Court that the evidence led by the successful party had been needlessly long, the Court refused to allow him more than half the cost of the proof, although he was defender in the action, and although the evidence led by the pursuer had been of greater length.

Observations on the practice of taking evidence in Sheriff Courts.

Headnote:

This was an action brought by William Ralston, farmer at Denny, against the Caledonian Railway Company for damages in respect of injury suffered by a horse belonging to him while travelling in a horse-box on the defenders' line without an attendant. The injury complained of was inflicted in consequence of the horse, a Clydesdale, 15 hands high, and measuring 28 inches from the withers to the chest, having passed through the feeding-window or door, 25 inches square, in the end of the horse-box in which it was travelling, and cut itself on the glass of the window of the coupé into which it got. The Court held, reversing the judgment of the Sheriff ( Fraser) and Sheriff-Substitute ( Smith), that the facts did not show that there had been any such carelessness or want of proper precaution on the part of the Railway Company as to render them liable for the result of such a singular and unexpected accident.

A very long proof had been led in the Sheriff Court, the pursuer's evidence extending to 64 pages of print, the defenders' to 50. Thirteen witnesses were examined for the pursuer, and the same number for the defender. Several of these witnesses were called to speak to the habits of horses, three of the defenders' witnesses being veterinary surgeons. These witnesses were examined at great length as to the proper length of halter for tying a horse, and as to their opinion whether it was necessary that an attendant should travel with a horse or not. The latter point was not argued by either side before the Court.

In the course of their opinions, in which they were unanimous in holding that the Railway Company could not on the facts be held liable, the learned Judges made the following observations on the length of the proof:—

Judgment:

Lord Deas—We have had a very long proof laid before us on the question as to whether there was such neglect or default on the part of the Company's servants as to make them liable for the injuries sustained by this horse. The facts, if given with sufficient precision, would have been quite sufficient to determine that question. There was no use for such expressions of opinion as we have had in the evidence of the so-called skilled witnesses. It is very unsatisfactory to see a Sheriff Court case carried on at such length and at so great an expense.

Lord Mure—I quite concur in what Lord Deas has said about the length to which the evidence has extended. To try to get anything out of it is like looking for a needle in a bundle of hay. It seems to have been taken down by a shorthand writer without any dictation. That is quite improper, and whether it is to have any effect on the question of expenses, I do not say at present.

Lord Shand—I find that the proof here extended to 467 pages of manuscript. Whether there is to be some mark of our sense of the inordinate length of that proof by a finding as to expenses is a question for the consideration of your Lordships. I must say I think there should be some steps taken to check the length to which these proofs are sometimes allowed to run. Often they are admirably taken, but we

Page: 373↓

have had occasion several times to remark that the evidence is allowed to be taken down at needless length.

Lord President—I concur in the opinion of your Lordships on the facts of this case. With regard to the question of expenses, I shall be glad to hear what parties have to suggest.

The defenders asked for their expenses, on the ground that their evidence, while it might no doubt have been considerably abridged, was not so long as that of the pursuer, and that they were obliged to meet the skilled evidence of the pursuer by skilled evidence on their side.

Lord President—The Court are of opinion that one-half of the cost of the proof should be disallowed. We wish it to be understood that this is a precedent that will be followed in similar cases.

Counsel:

Counsel for Pursuer (Respondent)— Balfour— J. P. B. Robertson. Agents— Lindsay, Paterson, & Co., W.S.

Counsel for Defenders (Appellants)— Johnstone— Mackintosh. Agents— Hope, Mann, & Kirk, W.S.
1878