Scottish Court of Session Decisions

The pursuer in this case, Mrs Clerk, was an old women of about ninety-four years of age. On the afternoon of Tuesday, 30th April 1878, she was crossing the street in front of her house, and in the centre of it (it was about 30 feet wide) she was struck and knocked down by a dogcart driven by the defender Alexander Petrie, and seriously injured. It was broad daylight at the time of the occurrence, and there was nothing to intercept the defender's view of the pursuer. He averred that he did not see her till he was within 10 or 12 yards, that he cried out to her, but that she was too deaf to hear him, and that he pulled up as quickly as he could, but not quickly enough to prevent her being knocked down. He further averred that her own negligence in not keeping a sufficient look-out contributed to the cause of the accident. The Sheriff-Substitute ( Robertson) after a proof assoilzied the defender. On appeal the Sheriff ( Maitland Heriot) reversed, and gave decree for £25. He added the following note, which sufficiently gives the import of the proof:—

“ Note.—This case is one of considerable difficulty, in consequence of the pursuer herself being to some extent to blame for what took place.

The accident happened in a wide street in Arbroath in broad daylight, while no one else was in the street near the pursuer. The defender admittedly saw the pursuer moving slowly across the street when he was 10 or 12 yards off, and yet he allowed the shaft of his conveyance to knock her over. He might have observed that she had not heard his cry, and the Sheriff fails to see why he did not at once pull up his horse entirely, or at least turn it aside so as to have passed behind her. Without imputing any very great blame to the defender, his fault—and it is a common one with drivers generally—was in proceeding on the assumption that the pursuer was a person of ordinary hearing and intelligence, and able in a moment to jump aside out of his way. Unfortunately, not being quick either in hearing or in stepping, she was injured. Although there was no evil intention on the defender's part, still it appears to the Sheriff that he was culpable in not driving more carefully than he did. But the difficulty in the case arises on the point of contributory negligence. Was the pursuer not also to blame in respect that she failed to look down Keptie Street before proceeding to cross the street. She herself admits she forgot to do this. Had she done so, no doubt the accident might not have happened. Was her forgetfulness in this respect—arising perhaps from defect of memory—so ‘recklessly imprudent’ as to liberate the defender. Or suppose she had looked and seen him coming along at the rate of five or six miles an hour, was she very culpable in proceeding to cross when she knew that all drivers are bound to be careful and cautious, and that she could not have supposed that anyone would ever drive over an old woman walking at a snail's pace.

No doubt the looking in all directions before crossing a street is always a wise precaution, but the Sheriff is very doubtful if all people are bound to look four ways before proceeding to cross a street. On the contrary, the Sheriff is of opinion that drivers must make way for foot-passengers. Were drivers not bound to do so, few people would be safe. Surely the old and the young, the lame, the deaf, and the blind, not to speak of philosophers and learned men lost in deep thought, are entitled to the free use of the streets, and drivers must be taught that they drive over any one at their peril. They are bound to have their horses always well in hand, and be able at once to pull up or turn aside when necessary. It

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is too much the way for drivers to give a shout to the foot-passengers, as they drive on without ever slackening speed, leaving the unfortunate passengers to scramble out of the way if they can. On the whole, the Sheriff cannot regard the pursuer's forgetfulness as so culpable a thing as to liberate the defender. See Addison on Torts, 371.

The decision on which the Sheriff-Substitute proceeds as ruling this case is that of Grant, 10th December 1870, 43 J. 115, when a child was killed at a private crossing on a railway. But that seems to the Sheriff to be a very different kind of case from the present. There it was impossible for the engine-driver to stop his engine so as to avoid the child crossing. Here it was not impossible for the defender to avoid driving against the pursuer. The Sheriff observes that the Lord President in giving his opinion in that case refers to this distinction when he says—“The train cannot pull up like carriages travelling at the rate of from five to eight miles an hour; the precautions taken must all be consistent with their still continuing their journey.’ From this the Sheriff infers that his Lordship considered that a driver travelling at that rate was bound to pull up. The public know in the one case that the engine-driver can't stop or turn aside his engine so as to avoid a passenger, and in the other that the driver can.”

The defender reclaimed.

At advising—