Scottish Court of Session Decisions

The pursuer appealed to the Second Division, and argued — The Sheriffs have given no weight to the fact that this child was run down in broad daylight. That fact of itself throws an onus on a driver. He has to discharge himself of fault— Clerk v. Petrie, June 19, 1879, 6 R. 1076. Nor did it matter that the injured person was a child— Auld v. M'Bey, February 17, 1881, 8 R. 495. Besides, the Sheriff had found that the driver was to blame in not occupying his proper seat, whence he could have more easily seen the child crossing the street, and more easily checked the horse, and this, added to the time of day when the accident occurred, was sufficient to convict him of negligence. The evidence showed that the van was driven recklessly, and that it was not the proper driver who was driving. But even if it were, it showed that he ought to have seen the child in time to pull up with safety. Assuming that he was himself driving, and at an ordinary speed, that was not in the circumstances sufficient care. He at least saw the loaded lorry which obstructed his view of the pavement, and a man who passed a hoarding or other obstruction was not entitled to go close past it at what would be an ordinary speed in a place where he could see the persons who were about to cross quite well. He must then be using special care, and be able to pull up at a moment's notice. There was no contributory negligence. Besides, a child is not in the question of contributory negligence to be dealt with as a grown person— Campbell v. Ord & Madison, November 5, 1873, 1 R. 149; Auld, supra. Even assuming that there was negligence imputable to the father in allowing the child to be there, which negligence was not proved on the evidence, the defenders' driver could in the result have avoided the effects of that negligence, and the defenders could not therefore avoid liability— Davies v. Mann, 10 M. & W. 574; Radley v. London and North-Western Railway Company, 1 L. R. App. Cas. H. of L. 754.

Answered for the respondents—The evidence showed that this was a pure accident which the driver could not have prevented. It was not disputed that he was on his own side of the street, and the evidence proved he was not driving furiously or even carelessly. It might be that he was not on his own seat, but even if that was a fault it had nothing to do with this accident, which was caused by the child coming suddenly out from behind the lorry and running right before the horse. Any blame which existed was for negligence imputable to the child's father in allowing so young a child to be out on a busy street without sufficient precaution for its safety. Shearman and Redfield on Damages, p. 56, sec. 48.

At advising—

Lord Justice-Clerk—My first inclination when I read the proof in this case was not to interfere with the judgments of the two Sheriffs upon what appeared to be a conflict of evidence, but upon further consideration I have come to the conclusion that the action is well founded. The whole question depends upon the fact whether fault is or is not attributable to the driver of the cart, as I think we must put out of view the plea of contributory negligence, there being no room for it. This little boy had been with his sister upon an errand, and it is said that he ran away from her, but that has not been proved. The milk cart was at this time coming down the street and knocked him down. Now, it is part of the duty of the driver of a cart or other vehicle not to run over passengers upon the highway, and to avoid doing so he is bound to use reasonable care. Passengers on the highway are entitled to cross the street, but in doing so they must also use reasonable care. The driver of a cart of the kind mentioned in this case, which is intended to move at a considerable pace, and which can be easily managed and easily stopped, is bound to take special care, and if this driver had acted as he ought to have done this accident would not have happened. What actually occurred here was that when the milk cart was coming down the street there was a lorry standing at the side of the pavement a little way up, and that that constituted an obstruction; but the driver of the dairy cart was not in his right place—the driving seat—and when the driver is not in his right place I assume he takes some risk for what may happen through want of sufficient command over his horse. The driver says he did not see the little boy, but the other boy who was with him saw the little boy before he was knocked down. I think this is a case for which the Dairy Company must answer. It is notorious that milk carts and other light carts of that kind are often driven too fast. I think, on the whole matter, that it has been proved (1) that the driver had not sufficient control over his horse, and had not a sufficiently wide view of the street, and (2) that if he had been going at a deliberate pace the accident would not have happened. I think, therefore, that this is a well founded action, and that we should find the Dairy Company liable in damages.

Lord Young—I am of the same opinion, and if I had had originally to decide this case in the Sheriff Court, I would have had no difficulty in deciding it in favour of the pursuer. The only hesitation I feel is in interfering with the judgment of both the Sheriffs, and particularly with that of the one who heard the evidence. In most cases that have to be decided on evidence, the Judge who takes the evidence possesses great advantages, but in other cases in which inferences have to be drawn from the evidence and applied, a Court of appeal are as fit judges as the Judge who heard the evidence. Any difficulty, in this case at all events, is lessened by the observations of the Sheriff-Principal in his note, where he says that the driver was to blame in not occupying his proper seat, although he only gives effect to that finding by refusing to give the defenders their expenses. I also think that the driver was to blame, and not only in the matter the Sheriff refers to, but, I am disposed to think, because he was driving at a furious pace. It constantly comes under our observation—and indeed we may almost take judicial notice of the fact—that when two lads are in charge of a light van like this they drive at a furious pace. In fact, the thing is so notorious that against such a van as this, driven by boys who are laughing and chatting together, and which has run over a person in daylight, the presumption is irresistibly strong, and I think it wholesome in the interests of the public safety that masters who send out boys with such vans should be held responsible for the injuries inflicted by the recklessness of these drivers.

Lord Craighill—I have come to the same conclusion, although I regret that I have to differ from the two Sheriffs. The Sheriff-Principal, however, has held negligence proved on the part of the defender, and therefore I think we cannot escape from the conclusion that the defender is liable. It also appears to me, as has already been observed by your Lordship in the chair, that contributory negligence cannot come into this case. It is not necessary to weigh in fine scales the evidence of the two different sets of witnesses, for even if, as the witness Young says, the cart was going at an ordinary pace, in the circumstances this was not enough, as he was not in his proper place, and had not the usual power of controlling his horse so as to protect the foot-passengers. He was only entitled to drive at his ordinary rate if he was using all the ordinary means for protecting foot-passengers. Young says that he did not see the little boy, but he did not see him because he was not in his proper place, and he did not see what he ought to have seen. This was enough to make his fault the distinct cause of the accident.

Lord Justice-Clerk—With regard to the assessment of damages—This was a very serious injury, and we are not yet in a position to say what the result will be. There appears to be some hope, however, of complete recovery. I think, however, we should give substantial damages, and £50 seems a proper sum. I will only add that I hope some strong-minded ædile will arise who will put down the furious pace at which these vans and spring-carts are driven.

The Lords sustained the appeal, recalled the interlocutors of the Sheriffs, found that the injury had been inflicted through the fault of the defenders, and assessed the damages at £50.