Scottish Court of Session Decisions

The second ground upon which a new trial is asked is that the pursuer Robert Fraser was guilty of contributory negligence. In regard to this, I am of opinion that a young child may in law be held capable of contributing to its own injury, and thereby be debarred from claiming damages from the person who caused it. The rule, however, cannot be applied to the same extent as it would be in reference to an adult. From a child of six years of age, which the pursuer in this case was, it cannot be expected that it should exercise any greater capacity or care than a child of that age could naturally have. School children, for example, of tender years, who have every day to go to school unattended, and must cross streets in order to reach the school-house, must use such reasonable care as school children can. It must be reasonable care no doubt, but care adapted to the circumstances, or, in other words, the ordinary care to be expected from school children. Then, too, the dangers that they must avoid must be such as lie within the range of their limited experience. Hence the Second Division in Campbell v. Ord & Madison, 1 R. 149, held that a child of four years of age was not capable of contributory negligence although it put its fingers into a crushing machine left in the market place of a country town unguarded, and of which it previously had no knowledge or experience. The child in the present case was a little older. But there is this peculiarity in reference to this pursuer, that he was not dealing with an unknown danger. He had gone regularly to meet his father coming from his work, and was therefore acquainted with the cars of the Tramway Company, and the danger of the streets arising therefrom. Such a child, even of six years of age, therefore, may fairly be open to the plea of bar founded upon contributory negligence. But it is because I hold that contributory negligence is not proved that I cannot sustain this as a reason for granting a new trial.

It has no doubt been proved that the child, instead of waiting to allow the car to pass him, took the other course of running across the street, hoping to get beyond the tramway before the car reached him. It would certainly have been a more prudent course not to have done this, but to have waited. One witness says he must have seen the car, for the lamps were lit, but assuming this to be the case, the question as to whether this was rashness, and therefore contributory negligence, on his part is a question of circumstances. In itself it cannot be held to be rashness to cross a street in front of an advancing carriage. It must depend upon the distance from the carriage whether it would be safe and proper, or foolhardy and rash, to make the attempt. This was a question of fact within the province of the jury, and in regard to which there was very scanty evidence led. The burden of proof is, however, upon the defenders, and I am not satisfied that the jury went against the evidence when they decided the point in favour of the pursuer. That evidence seems to stand as follows:—The witness James Dick said that when he saw the pursuer step off the pavement to go on to the street the car was four or five yards away from the pursuer, and it is suggested that as there were twelve feet between the pavement and the tramway, the boy just ran among the horses' feet, seeing that they could run over the four or five yards far quicker than he could run over the twelve feet before reaching the rail. I am not satisfied that it is safe to trust to this guess of Dick's as to the number of yards between the boy and the horses. I am certain the jury did not rely upon it. I referred to it specially in the observations I made to the jury, and after my charge was ended I was requested by Mr Darling, for the defenders, to point out to the jury once more the circumstance that the boy had twelve feet to cover before he reached the tramway, and this I did. The jury, I think, must have proceeded upon the ground that it was a random guess of Dick's, and they had some ground for that opinion looking at the discrepancies as to distances in regard to other matters in the evidence given by the witnesses. Thus, for example, Francis Smith and Dick say that there were only four or five yards between the two cars, numbers ten and eleven, after they had started, while Thomas Ness says that there were thirty yards, and John Wilson says that there were forty yards between them. The night was dark, the place was imperfectly lighted—having only two street lamps—and Dick and Cumming were, according to Cumming, fifteen to twenty yards in front. It was impossible under such circumstances to gauge accurately the distance between the advancing car and the boy on the pavement; and when we find such discrepancies as to distances on other points, one cannot rely upon the exact accuracy of Dick in specifying four or five yards, so as to upset the verdict of a jury who had heard Dick give his evidence, and who had the point distinctly presented to them for their consideration.

Further, if the boy made a mistake in calculating the distance between himself and danger, the Tramway Company are to blame for that. He was entitled to rely upon the cars going at their usual rate of speed—the legal rate of six miles an hour—and the verdict of the jury has found that they went at a faster rate.

I also give to the boy this presumption, that being acquainted with the street he would, under the ordinary instincts of self-preservation, not run into a danger which he had avoided every evening before. If he judged erroneously the distance between him and the advancing car, he was led into the error, not by his own rashness, but by his ignorance of the unusual pace at which the car was coming down the incline.

On the third ground—that the damages given were excessive—I am not inclined to interfere with the verdict of the jury. The sum of £150 is larger than I would have given, but not so large as to induce one to order a new trial. The injury

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