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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Inglis v. The Same [1883] ScotLR 20_585 (19 May 1883)
URL: http://www.bailii.org/scot/cases/ScotCS/1883/20SLR0585.html
Cite as: [1883] ScotLR 20_585, [1883] SLR 20_585
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SCOTTISH_SLR_Court_of_Session
Page: 585↓
Court of Session Inner House Second Division.
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Facts:
A person having charge of a locomotive in the employment of a trading company whose works communicated by a siding with the main line of a railway company, raised an action of damages against the railway company setting forth that while upon the siding on a dark night in the discharge of his duty, and when about to move certain points thereon, he fell over an embankment on to the main line and received severe injuries. He further averred that it was the duty of the railway company to fence the siding at the place in question, and that the accident was due to the absence of such fencing. Held that the obligation to fence was a question of circumstances, and that the pursuer was entitled to an issue for the trial of the cause.
Hugh Waugh, brakesman, and James Inglis, weigher, both in the employment of the Steel Company of Scotland (Limited), at their works at Blochairn, near Glasgow, raised the present actions against the City of Glasgow Union Railway Company for damages for personal injuries by falling in the darkness of a winter morning over an embankment on to the defenders' railway.
The pursuer Waugh set forth that he was the fireman or stoker of an engine connected with the Steel Company of Scotland at Blochairn. The pursuer Inglis set forth that he was “weigher” in connection with the same engine. Both pursuers averred that the engine with which they were connected carried a crane for lifting ingots, and a weighing machine for weighing them. They further averred—“The defenders have a line of railway or siding which leads into the works of the said Steel Company at Blochairn, which is called or known as the Blochairn siding of their system of railway lines. This siding or railway is the property of the defenders, and is formed on an incline by archways of brick, leading off their main line of railway up to the Steel Company's works at Blochairn, and it is by this siding or railway that the said Steel Company, by arrangement with the defenders, take in and put out the material for their works. The said Steel Company have also, by arrangement as aforesaid, the use of the defenders’ ground and railway to the southwest of their works for laying down ingots and blooms, as also ores and other materials, before they are taken into their works.” The pursuer Waugh averred—“Upon the morning of Wednesday the 1st day of November 1882, at about three or half-past three o'clock, being then very dark, the pursuer was, with his engine, No. 4 ‘crane pug’ aforesaid, engaged at the outside of the Steel Company's works, and upon the defenders’ said railway siding, when, having to get down to examine the points, which are situated near to the corner of a wooden bridge at the west end of the Steel Company's works, he, in the dark, fell over the defenders’ embakment there, which is perpendicular, and at least 15 feet in height, and is not protected by any fence, paling, or protection whatever.” The pursuer Inglis averred that on the same morning he was with the engine engaged at the outside of the Steel Company's works, and upon the defenders’ railway siding, “when, having been engaged at his ordinary employment as a weigher on said engine, and having occasion to alight therefrom to assist in examining the points, or do some other business along with the said Hugh Waugh near to the corner of a wooden bridge at the west end of the Steel Company's works, they in the dark fell over,” &c. Each pursuer averred that in consequence of the fall he had sustained severe injuries, and each averred—“The place where the pursuer fell and sustained his injuries is totally unfenced and unprotected. There was a railing or fence at the same place about twelve months previously, but it was removed by the defenders, and nothing was put up in its stead. The place is a very dangerous one, and should have been kept properly fenced and protected by the defenders, as it was their duty to the Steel Company and their servants, and all others having right to use and being lawfully on the said railway or siding, to
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have done for the safety and security of those using the said railway or siding, but this the defenders, although aware of its dangerous character, culpably neglected to have done. The pursuer fell over the embankment and sustained his injuries in consequence of the unfenced condition of the embankment.” The defenders denied liability, and averred that the points were protected by a brick wall, and that had the engine been stopped, and had the pursuer (Waugh) got off it at the proper place, and taken a hand-lamp of the engine with him, which should have been there for that purpose, the accident would not have occurred. They also denied that they were bound to fence the place at all. In the case of Inglis they denied that the pursuer had any occasion to leave the siding or touch the points, that being the fireman's business and not the weigher's. They averred that opposite the points there was a brick wall, by the erection of which they had more than fulfilled any legal obligation.
They pleaded that the pursuers' averments were not relevant.
The Lord Ordinary ( Lee) after hearing counsel on this plea in the Procedure Roll, allowed the pursuer in each case to lodge an issue.
Opinion.—[ Waugh's case] The pursuer sues the City of Glasgow Union Railway Company for damages on account of personal injuries, which he says were suffered through the defenders' fault. It appears the defenders have a siding—called the Blochairn siding—which connects the works of the Steel Company of Scotland with their lines of railway. This siding ascends from the main line until it reaches a level sufficient to cross over the line by a bridge. The incline between the point where the siding joins the main line and the bridge over the railway is said to be constructed upon archways of brick, forming what is called by the pursuer an embankment running along the side of the railway, and the side of which next the railway is said to be perpendicular.
“The fault alleged against the defenders is that this embankment is unfenced, at least in one part where it formerly was fenced, and the pursuer's injuries are said to have been received in consequence of his having fallen over in the dark while going from his engine to the points connecting the siding with the line into the works. It is not denied in this case (as in Inglis' case) that the pursuer may have had legitimate occasion to get off his engine and attend to the points. These private points are said to be attended to by someone on the engine, and not by a separate pointsman. But it is alleged by the defenders that opposite the points the siding is protected by a brick wall, and that if the engine had stopped at the right place such an accident could not have happened.
The only question at present, however, is, whether the pursuer's allegations are relevant and sufficient to support the statement in the condescendence of a failure of duty on the part of the defenders in regard to the fencing of that part of the embankment over which the pursuer fell.
In deciding this question I cannot assume that the engine was not stopped at the right place. I must assume that the pursuer may be able to prove his allegations, which, fairly read, seem to me to import that he got off the engine at a place where it was legitimate and intelligible that the engine should stop before advancing to the points.
It was decided in the case of Clark v. The Caledonian Railway Company, 5 R. 273, and also in the case of Robertson v. Adamson, 24 D. 1231, that the proprietors of railways or other works are under no such general obligation to fence bridges as to make them liable in all cases where an injury is caused by the want of fencing.
I take it to be also decided that in such cases it is not sufficient to allege in general terms that it was the duty of the defenders to fence. The allegations must set forth circumstances from which an obligation to fence may be inferred or may arise.
But while this is so, it by no means follows that failure to fence may not be sufficient to give rise to liability. The question whether there was fault in not fencing such a place is a question of circumstances, and one which, in my opinion, cannot be decided in the negative in this case without inquiry. The obligation upon the proprietors of such a siding, which is to be used by others not merely for passing along with engines and trucks but also to some extent for walking upon in order to get from the engines to the points, is to use reasonable precautions for the safety of those lawfully using it and who have not themselves undertaken the risk attending such use.
Now, in the present case, the pursuer was not a servant in the employment of the defenders. He was, according to the allegations, using the siding as a servant of the Steel Company, who were entitled to the use of it. I see no reason to doubt that the pursuer, being lawfully there, was entitled to assume that no reasonable precaution had been omitted, and that the siding was in proper condition. Had a part of this embankment been removed or allowed to fall down, and had an accident occurred to him through the fault of the defenders in not using proper precautions, I think he would have had an action against the defenders, and that it would have been no answer to say that they had not contracted with him and were under no common law obligation to the public. By allowing the siding to be used by the servants of the Steel Company they incurred an obligation to use reasonable care in seeing to its condition and in guarding against its being left in a dangerous state.
My opinion, therefore, in this case is, that the question whether there was fault on the part of the defenders is one of circumstances. I think that the question of fencing bridges was so dealt with by the Lord President in the case of Clark v. The Caledonian Railway Company, and the question of fencing the place in question here seems to be much of the same kind. A good deal may turn upon the length of this incline; the distance of the place where the engine stopped from the points, the mode in which these points were managed, and the condition of the way upon both sides of the rails. It is said to have been a dark night. This may suggest carelessness on the pursuer's part in not taking a lamp. But I cannot infer contributory negligence. The want of a lamp may admit of explanation, and the darkness may account for the engine having been drawn up at a greater distance than necessary from the points. I have no
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[ Inglis' case] In Inglis' case I have some difficulty in holding that there is a sufficient allegation that the pursuer had any occasion to get off the engine at that place. He describes himself as a weigher, and I do not see that in that capacity he had anything to do with the points. But as he says that he went to assist the stoker, and that it was a dark night, I think that he also should be allowed an issue. If he was one of those who had a right to be there, the question whether the place was such as should have been fenced by the defenders, is a question which he is entitled to raise. For the obligation to fence, where it arises, seems to arise for the protection of all persons having a right to be at the place— M'Martin v. Hannay, 10 Macph. 411, p. Lord Neaves; Ferguson v. Laidlaw, February 1, 1871, 8 Scot. Law Rep. 33, p. Lord Justice-Clerk.”
Thereafter the Lord Ordinary approved of the following issue in each action:—“Whether, on the morning of the 1st day of November 1882, the pursuer fell over an embankment on the defenders' line of railway, at a place at or near the Blochairn Steel Works, near Glasgow, and was thereby injured in his person, through the fault of the defenders, to the loss, injury, and damage of the pursuer.”
The defenders reclaimed.
Additional authorities — Ireland v. North British Railway Company, November 1, 1882, 10 R. 53; Greer v. Stirlingshire Road Trustees, July 7, 1882, 9 R. 1069; Woodley v. Metropolitan District Railway Company, 2 L.R., Exch. Div. 384; M'Monagle v. Baird, December 17, 1881, 9 R. 364.
The Court adhered to the Lord Ordinary's interlocutor.
Counsel for Pursuers (Respondents)— Campbell Smith— Nevay. Agent— Robert Broatch, L.A.
Counsel for Defenders (Reclaimers)— Jameson— Lockhart. Agents— Murray, Beith, & Murray, W.S.