Scottish Court of Session Decisions

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Cite as: [1882] ScotLR 19_817, [1882] SLR 19_817

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Thursday, July 13. 1882.

[ Lord Lee, Ordinary.

19 SLR 817

Thompson

v.

North British Railway.

Subject_1Reparation
Subject_2Issue
Subject_3Relevancy
Subject_4Pursuer engaged in Unlawful Act — Duty of Railway Servant where Passenger in Breach of Law.

Process — Poor Roll — Caution for Expenses — Pro — babilis causa litigandi.
Facts:

The pursuer of an action of damages for bodily injury against a railway company,
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averred that having failed to find room in the carriages of a train which was about to start, he was in the act of entering the guard's van, in which he observed a number of other passengers who were there with the guard's knowledge and consent, when he was violently pushed back by the guard, with the result that he fell between the train, which was then beginning to move, and the platform, and received severe injuries. Held that as the pursuer did not allege that he had any authority from the guard to enter the van, and must be therefore assumed to have had none, the guard was justified in preventing him from entering a part of the train where he had no right to be, and that his statements were therefore irrelevant, as not disclosing any case of fault on the part of the railway company or their servants.

Held ( per Lord Lee) that it is not a ground for obliging a pursuer to find caution for expenses that the reporters on the probabilis causa litigandi of applicants for the poor roll have reported that he has no probabilis causa.

Headnote:

This was an action at the instance of George Thompson, mason in Edinburgh, against the North British Railway Company. The pursuer concluded for £2500 damages for injuries sustained by him on 8th October 1880 through the fault, as he alleged, of the defenders. He averred that on 8th October 1880 he was at the Musselburgh Autumn Race Meeting, and had a return ticket by the defenders' line, and (Cond. 5) that on entering their station at Musselburgh in the afternoon he found a train nearly ready to start. “A number of the doors of the carriages were open, as if for the purpose of passengers entering. There were no officials present on the platform of the station or in the train except the guard, who was at his van, and to whom the pursuer spoke, asking if the train was full. The guard replied it was not, and the pursuer proceeded forward to look for room in the carriages. He was unable to find accommodation, and returned to the guard, requesting to be allowed to travel in the van, in which there were a number of passengers, who in the knowledge and with the consent of the guard were about to travel in the van. While in the act of entering the van, the train being then at a standstill, the guard, without warning or remark of any kind, pushed him back with his hand on the pursuer's breast, so violently that he stumbled, and to prevent himself from falling clutched hold of the handle of the carriage-door. The train at the same moment was, without any notice or warning, started, and dragged the pursuer backwards for some yards along the platform, and he being unable to regain his feet was thrown down between the carriages and the platform. The guard's van passed over his right arm and leg.” He averred that in consequence of the accident he had his right leg and arm amputated shortly after the accident, and that he was therefore unable to work for the maintenance of his family and himself. In Cond. 7 he made the following averments:—“On the occasion referred to there were no officials of the company on the platform or in the station to see that passengers were duly accommodated, and to warn them that the train was about to start, other than the guard before referred to. It was the duty of the defenders to provide suitable travelling accommodation to their passengers, to provide suitable officials to guard against accidents, and to see the trains duly and carefully despatched after due notice and warning. The defenders failed to discharge said duties, having no proper officials in charge, no suitable accommodation, and no warning having been given of the starting of the train; and by their failure in these respects they were guilty of gross and culpable recklessness and negligence, and of want of due and reasonable care.”

The defenders denied that the pursuer's injuries arose from any fault for which they were responsible. They stated that the pursuer had applied for, and was refused, admission to the poor roll of the Court, and that the reporters had reported that he had not in their opinion a probabilis causa litigandi.

They pleaded, inter alia—“(1) The pursuer having made application for admission to the poor roll, to enable him to carry on this action, and having been refused, on the ground that he had no probabilis causa litigandi, is bound to find caution for expenses. (2) The averments of the pursuer are not relevant or sufficient to support the conclusions of the summons.”

Judgment:

The Lord Ordinary (Lee) repelled the first plea—in-law for the defenders, and adjusted issues, granting leave to reclaim. He appended this note to his interlocutor:—“In the case of Hunter v. Clarice ( 1 R. 1154) the pursuer was a pauper in actual receipt of parochial relief. I think that such a case is plainly distinguishable from that of a pursuer against whom all that can be said is that he is in poverty, and has failed to obtain a favourable report from the reporters on probabilis causa litigandi.”

The defenders reclaimed, and argued that the pursuer's statements were irrelevant, since it appeared from them that his case was that the defenders' servant had in the discharge of his duty prevented him from entering the van in which he had no right to travel, and that his injuries had resulted from a fall sustained when he was being so prevented. In any event, the pursuer ought to be made to find caution for expenses. The reporters on the probabilis causa of litigants were a protection to a defender from a litigation with one with whom it was a hardship even to litigate successfully, for he could never pay a penny of expenses— Macdonald v. Simpson, March 7, 1882, 19 Scot. Law Rep. 571.

At advising—

Lord President—We have heard argument on the first two pleas-in-law for the defenders in this case, which are—[ His Lordship read the pleas, quoted supra]. Now, if the pursuer's averments are not relevant it is unnecessary to go further, and therefore the plea as to relevancy may be taken first. The whole question depends on the averments in the fifth article of the pursuer's condescendence. The pursuer having stated that he was at Musselburgh Race Meeting in October 1880, and came to the station in the afternoon for the purpose of travelling home to Edinburgh, avers that he found that a train was nearly ready to start, and that he asked the guard whether the train was full. The guard replied

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that it was not, and the pursuer proceeded forward to look for room but could not find it. That was all natural enough, for a train fills up rapidly on such an occasion. The pursuer then goes on to say that he “returned to the guard, requesting to be allowed to travel in the van, in which there were a number of passengers who, in the knowledge and with the consent of the guard, were about to travel in the van. While in the act of entering the van, the train being then at a standstill, the guard, without warning or remark of any kind, pushed him back with his hand on the pursuer's breast, so violently that he stumbled, and to prevent himself from falling clutched hold of the handle of the carriage-door. The train at the same moment was, without any notice or warning, started, and dragged the pursuer backwards for some yards along the platform, and he being unable to regain his feet was thrown down between the carriages and the platform. The guard's van passed over his right arm and leg.”

The train, it appears, got into motion just at the moment that a push was given by the guard to the pursuer. Now, it is to be observed that though it is averred by the pursuer that he requested to be allowed to travel in the guard's van, he does not say that his request was granted, or that any answer was made to it at all, nor does he even say that the guard remained silent. In short, there is nothing to show that he had any sanction whatever for trying to get into the van, and it must therefore be assumed that he attempted to enter the van without it. Now, that was illegal, since passengers are not entitled to enter the van but by permission of the persons in charge of the train. If, then, the pursuer, in entering the van as he did, was pushed back by the guard, it is impossible to say that the guard was not thereby doing his duty. The guard pushed him back to prevent him from entering the van, and also, probably, to prevent him from being injured by the train which was just starting at the time. The pursuer being thus pushed back, caught hold of and held on to the handle of the van. That was a most imprudent thing. If he had not held on as he did to this handle the accident would plainly not have happened. I am of opinion therefore that the pursuer's statements are irrelevant.

Lord Deas concurred.

Lord Mure—The point is not free from difficulty, but I do not see my way to differ from your Lordships. I go chiefly on the fact that the attempt of the pursuer to get into the van without permission was a step which a railway passenger is not entitled to take.

Lord Shand—I am entirely of the same opinion, and I give my opinion not on mere pleading, but because I believe that the substance of the case is fairly stated. I think that in the record a case is set forth in which no fault is stated against the defenders, and without fault there is no claim against the defenders. The pursuer summarises his case in Article 7— [His Lordship here read Article 7, quoted supra]. These words must of course be read with reference to the statements made in the previous articles. Now, so far as the want of accommodation goes, I think that a passenger in such circumstances as the pursuer was here placed in must remain behind. We all know that on such an occasion a train is rapidly filled up, and that it is often necessary for a passenger in the pursuer's position to wait till another train is made up and sent off. Therefore as far as want of accommodation goes, that did not conduce to the accident. The same thing must be said of want of sufficient number of officials, and of want of sufficient warning that the train was about to start. The statement of the pursuer is that he endeavoured to enter the van when the train was just starting, and that the guard pushed him back when unhappily this accident occurred. I think the statement is irrelevant.

The Lords recalled the interlocutor of the Lord Ordinary and dismissed the action.

Counsel:

Counsel for Pursuer— J. C. Smith— J. A. Reid. Agent— D. H. Wilson, S.S.C.

Counsel for Defenders— J. P. B. Robertson— MacWatt. Agents— Millar, Robson, & Innes, S.S.C.
1882