Scottish Court of Session Decisions

This was an appeal from the Sheriff Court of Ayrshire in an action raised by Margaret Duncan Gibson, daughter of the Rev. Henry Gibson, minister of Glenapp, against Thomas Milroy junior, farmer, Glenapp, concluding for £50 in name of damages for injuries caused to her by being thrown down on the public road near Finnart's Lodge by a dog-cart, the property of and then being driven by the defender.

The pursuer on 23d January 1878, about 7 p.m., left the manse of Glenapp with her mother to get aid in a search for her brothers, who were believed to have wandered on the hills. The night was very dark, with high wind and hail showers, which prevented them from hearing the approach of the conveyance. The defender averred that he was driving in the centre of the road when the accident happened, that the injuries were trifling, and that the pursuer had crossed right in front of the pony he was driving, and was herself solely to blame. The night, he further said, was not so dark as to require lamps, which in any view would have been unnecessary.

The Sheriff-Substitute ( Paterson) found for the pursuer, with £6, 6s. of damages. He proceeded on the ground that the accident might have been avoided by proper care and precaution, and that the gig should have been provided with lamps.

The Sheriff ( Campbell) on appeal recalled the Sheriff-Substitute's interlocutor, finding that the pursuer had been culpably negligent of her own safety, and had contributed to the injury. In his note he stated that there was no statutory provision that carriages must carry lights, and that there was no such custom averred.

The pursuer appealed, and argued—A passenger on foot was ex lege entitled to be on the road as well as on the footpath. If that was so, then the rule of the road applied, and this was violated by the defender. Further, he had no lamps.

Authorities— Cowden, 2 Espin. 685; Chaplin, 3 C. and P. 554; Boss v. Lytton, 12 C. and P. 407.

Argued for the defender—As to lamps, it was contrary to the custom of the country to carry lamps on a gig, and farmers objected to lamps as really tending rather to danger than safety. No doubt passengers were entitled to walk in the road, but if a passenger left the footpath he must exercise caution and care. This was exactly the case of Williams. [ Lord Justice-Clerk—The defender admits that he saw the pursuer fifteen yards off—that he uttered no warning sound—that he did not pull up. Are those not important facts The pursuer seemed to have acted on a sudden impulse to cross. This the defender could not foresee, nor could he suppose she would leave a place of safety and go to one of danger.

Authorities— Williams, 3 C. and Kirman, 81, and Pollock, C. B., there; Cotton v. Wood, 1860, 8 Scott's C.B. Reps., N.S., 568, and Erle, C. J., there.

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