Scottish Court of Session Decisions

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James Ireland, baker in Largo, raised this action against the North British Railway Company, concluding for damages to the extent of £500 as compensation for the death of his son, a boy of ten years old, who was killed by a passing train on the Leven and East of Fife line of the defenders' railway on the night of 31st December 1881. This line passes through the village of Largo, where it is intersected by a footroad leading from the upper to the lower parts of the village, and which, after descending an incline, traverses the line by a level-crossing. On both sides of this crossing there were gates at the time of the accident. The pursuer averred that these gates were “in a state of great disrepair, and in place of being constantly shut, as they ought to have been, were seldom or never shut,” and that the defenders' porter at Largo, or his wife—their house being situated just at the level-crossing—was entrusted with the duty of watching the crossing. He further averred that on the day of the accident he and his deceased boy were engaged in delivering bread to customers in Largo, and that between ten minutes and a quarter past five P.M., and after the time when the defenders' train from Anstruther to Thornton should have passed the level-crossing, his son delivered bread to the porter's wife at the crossing. She did not tell him that the train had not passed. He then crossed to the north side of the line, and delivered bread to customers there, after which he returned, and was in the act of crossing the line again at the level-crossing when the train, which was late, and running “at a rate of speed quite unusual and dangerous to go at over a level-crossing, more especially a crossing not specially fenced or watched, as was the case with the said crossing,” came up and knocked him down and killed him. “No signal was sounded by it when approaching the said crossing. The gates were open, and there was no one at them to intimate the approach of danger. There were no lights at or near the crossing to enable it (the train) to be seen or to give warning of approaching danger. No warning of its approach was given.” In condescendence 4 the pursuer thus summed up the fault alleged against the defenders—“In consequence of the negligence of defenders, or of their servants, for whom they are responsible, in respect, 1st, of the fencing of their line at this crossing being defective; 2d, of the person in charge of the crossing giving no warning, when she knew the boy was crossing the line, that defenders' train, then past due, had not passed; 3d, of the absence from the crossing of the person in charge, or anyone on behalf of the defenders, to prevent the boy crossing; 4th, of there being no light; 5th, of the train going at unusual speed, and not slackening it at the crossing; and 6th, of no warning being sounded by it when approaching the crossing—the pursuer's son lost his life as aforesaid, and the defenders are liable to the pursuer in damages for the loss occasioned to him by his son's death. The defenders took no precaution whatever for the protection of passengers crossing the line. But they ought to have taken every possible precaution, or to have had a bridge at the footway in question for the use of the public, which alone could have effectually secured the safety of the numerous persons who required to pass daily from Upper to Lower Largo. The life of the pursuer's child was sacrificed to the negligence and avarice of the defenders.” (Cond. 5) “Shortly after the death of the pursuer's son the defenders placed new gates on the crossing at both ends, constructed so as to be self-closing. Had gates of this kind been at the crossing originally the pursuer's son had not been killed.”

The defence consisted in a denial of any fault on the part of the defenders. The defenders also maintained that the deceased caused, or at least contributed to cause, his death by his own negligence. They pleaded that the averments of the pursuer were not relevant or sufficient to support the conclusions of the summons.

The Lord Ordinary adjusted this issue for the trial of the cause:—“Whether, on or about the 31st December 1881, the pursuer's son James Ireland was killed at a level-crossing at or near Largo by a train belonging to the defenders, through their fault in not sounding the whistle of the engine on the train approaching the said crossing, to the pursuer's loss, injury, and damage?”

“ Opinion.—The pursuer has in the fourth article of his condescendence stated the grounds of fault which he says are chargeable against the defenders. Except as regards one of them, they are precisely set forth. There are two ways of dealing with this case. The first is to send it to a jury with a general issue as to whether the death of the pursuer's son was caused by the fault of the defenders. The second is to put the question to the jury whether the death was caused by some one or more faults specifically stated?

The former of these issues is convenient enough when there is alleged upon the record only one specific fault. But it is a form of issue that is very inconvenient when there is alleged as against the defenders a number of faults or negligences, some of which, if committed, involve the defenders in damages and others do not. The present case is a very good example of the inconvenience of sending a general issue to a jury. Of the six cases of negligence stated against the defenders the Lord Ordinary is of opinion that only one of them is relevant. But if the whole case were sent to a jury, under a general issue as to whether the death was caused by the fault of the defenders, in all probability evidence would be tendered upon the five irrelevant alleged acts of negligence, It must be for the purpose of proving them that they are averred upon the record. The result would be debates at the trial as to the competency of the evidence upon these acts. Exceptions to the ruling of the Judge would no doubt be taken, and questions would then have to be determined upon a bill of exceptions which may now be very well settled upon the adjustment of the issue, to the advantage of the parties, by the abridgment of the trial.

The Lord Ordinary is therefore of opinion that there ought to be put in this issue the only specific fault alleged against the defenders which renders them liable in damages. The defenders in carrying on their business as public carriers are bound to take all reasonable precautions for the safety of the public which do not impose upon them intolerable conditions. But at the same time the public must also take care of themselves to a reasonable extent. It is out of the question to suppose that railway companies are to guard against inconsiderateness and folly on the part of every individual who may cross

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their line or who chooses to take advantage of the facilities of locomotion which they confer. Further, although railway companies do frequently provide safeguards against danger, it must not be inferred therefrom that there is imposed upon them a legal duty to provide them. Since the case was argued the Lord Ordinary has referred to the decisions of our own Courts and those of England and America (so far at least as the latter are to be found in the series called ‘American Reports’), and he can find no authority for the grounds of action set forth in five of the specific cases of fault stated by the pursuer. But in consequence of the argument of the defenders the Lord Ordinary thinks it right to say that he holds it to be quite clear that although duties may not be laid upon the railway company by the Railway Clauses Consolidation Act, yet the common law is powerful enough to reach every case where injury has been done by a fault inferring damage.

Now, to take each of the alleged cases of fault set forth in the fourth article of the condescendence in its order, the Lord Ordinary is of opinion that the following are irrelevant:— First, It is said that the fencing of the line was deficient. This is not very intelligible, looking to the fact that the object was not to keep anybody off the line at the place in question, but to allow every person to cross it at the level-crossing. It is not said in the record whether the level-crossing was one made by the public without permission of the railway company, or by the railway company as a voluntary grant to the public, or under compulsion in consequence of a clause in their Act of Parliament. But assuming it to be a recognised railway crossing, there was no obligation on the railway company to fence it. The second and third grounds of challenge are that the person said to be in charge of the crossing gave no warning that the defenders' train was due. The answer to this is that there was no obligation on the part of the company to keep any person in charge of the crossing. The fourth charge is that there was no light, and to this charge the answer is that there was no obligation to keep a light. The fifth ground of complaint is that the train went at an ‘unusual’ speed. What this means everyone may interpret for himself. The Lord Ordinary was informed that the usual pace upon this line was slow enough; and perhaps an unusual rate was moderate after all. Now, if none of these alleged faults would singly found a claim for damages, they will not do so though they are all combined, and it would be unjust towards the defenders to allow the pursuer to lead evidence as to alleged negligence in reference to matters where the defenders neglected no legal duty. The impression that such a proof is calculated to leave upon the mind of a jury could not be removed by any instruction from the Judge that they were to discharge from their minds all the evidence led upon such immaterial and irrelevant points. But the last ground of complaint is one which is supported by authority, viz., that no warning was sounded when the crossing was approached. In the case of Grant v. Caledonian Railway Company (10th December 1870, 9 Macph. 258) the Court had occasion to consider this question with reference to a very similar case to this, and they came to the conclusion that the railway company were bound to sound the whistle on approaching a recognised and established railway crossing. They held that a railway company carrying on their dangerous business were bound to use precautions for the public safety which were entirely within their power and did not impose upon them hard conditions. To require them to keep a lamp burning at every level-crossing, with a guardian to protect it, involving the building of a house and the payment of the weekly wages of such guardian, would have been to demand what was unreasonable. But to ask from them that the drivers of their trains should at every level-crossing sound a whistle 200 or 300 yards before arrival at it was not an unreasonable but a right condition to impose upon them. The Lord Ordinary therefore thinks that on this ground the record is relevant, but that the issue must be specifically and entirely confined to this alleged fault by insertion of the words which he has introduced into the issue. These seem to him to be the proper words to meet the case, and not generally whether warning was given. This would leave open at the trial the question, What was sufficient warning? The railway company maintain that there were other warnings than the whistle which were quite sufficient for the purpose; in particular, they say that the lights of the advancing train and the noise that it made ought to be held warning enough. The Lord Ordinary is not disposed to accept this as compliance with the opinion of the Court in the case of Grant. At half-past five on a foggy evening in the month of December—one of the darkest nights in the year—it is probable that a person crossing the line may not have observed the advancing lights of the train; and the noise of such a train may have been deadened, and perhaps altogether extinguished, by the noise of the sea breaking on the shore, as it does at Largo at that season. Therefore the question must be, Did the defenders sound the whistle?”

The pursuer moved the Second Division to vary the issue by deleting the words “in not sounding the whistle of the engine on the train approaching the said crossing.”

He argued—Confining the issue to one particular ground of fault was unusual in practice, and to do so here would shut out from the consideration of the jury a great part of the pursuer's case. No such issue had been approved of since the case of Brownlee v. Tennant & Co., June 24th, 1854, 16 D. 998.

The defenders replied that though the general practice was now in favour of a general issue, there was no hard and fast rule; that here it was necessary to take a special one, for a combination of the various grounds of fault irrelevantly alleged by the pursuer would not make a relevant case.