Scottish Court of Session Decisions

This was an action raised in the Sheriff Court of Lanarkshire by Archibald M'Lean, carting contractor, Auchinbegg, against George Warnock, farmer, Lesmahagow, concluding for a payment of £50, being the value of a horse belonging to the pursuer which the defender agreed to graze during a part of the summer of 1882, and which was found dead on the 3d of September, owing, as the pursuer averred, to the defender's carelessness and neglect.

It appeared from the proof which was taken before the Sheriff that the defender had had upon several previous occasions, including the preceding year, both horses and cattle belonging to the pursuer for grazing, and that it was the custom between the parties to make a payment for the grazing at the end of the season. The same course was to have been followed upon the present occasion, and no precise sum was stipulated for in name of rent.

The soil underneath the field into which the pursuer's horse was put upon the 1st of July 1882 had been to some extent removed on account of mineral workings, and in consequence there was a sit or subsidence of the surface.

There appeared also to have been in a hollow part of the field a hole, the soil about the edge of which seemed to be quite hard, and the mouth of which could only be seen by one who was close to it. There was some difference of opinion among the witnesses as to the size of the mouth of the hole, but it could not have been less than from 18 inches to 2 feet in diameter. A wet ditch lay near to it, but the hole itself was dry. Both pursuer and defender deponed that they were ignorant of its existence, while the witnesses who spoke to its size alleged that it had been known to them for a considerable time. There was no fencing of any kind around the hole, and the defender had horses of his own going about in the same field. It was into this hole that the pursuer's horse had slipped. The horse's hind legs had apparently gone in first, and in struggling to free himself he had enlargened the hole, and caused the water from the wet ditch to flow into the hole. The result was that the horse was drowned.

As the defender denied all liability for the death of the horse, and refused to make any compensation, the pursuer raised the present action for its value, and pleaded—“(1) The defender in undertaking and agreeing to graze the gelding in question for pursuer, was bound to take all proper precautions for the protection and safety of said gelding; and having failed to do so, he is liable for the loss occasioned to the pursuer through such failure. (2) The defender having undertaken to graze the said gelding for pursuer, and having negligently permitted the same to fall into a hole or sit on his park or field, and thereby to be destroyed, is liable to the pursuer in reparation to the extent sued for, which is reasonable.”

The defender pleaded that he had entered into no contract with the pursuer for the grazing of the horse, and had undertaken no responsibility in relation thereto, and further—“(3) In the event of the death of the said gelding being shewn to have resulted from a sit or sinking of the surface of the ground in consequence of the minerals thereunder having been wrought out, for which the proprietor of the said lands might be held responsible, the pursuer ought to have called the said proprietor for his interest.”

After a proof the Sheriff-Substitute (Birnie) pronounced this interlocutor:—“Finds in fact (1) That the defender contracted with the pursuer to graze for hire a three-year-old gelding belonging to the pursuer for the portion of the season after the month of July last; (2 ) That said gelding was placed on the defender's farm of Auchinbegg, and grazed there until on or about the third day of September, when it was killed by falling into a hole on said farm: Finds in law that said gelding was killed through the fault of the defender: Assesses the damages at £50: Finds the defender liable to the pursuer in said sum, with interest at the rate craved from date of citation until payment: Finds the defender liable to the pursuer in expenses,” &c.

“ Note.—The defender is tenant of several adjoining farms, including High Stockbriggs and Auchinbegg, and says the pursuer was told by him to put the horse on High Stockbriggs, and is therefore not entitled to damages for the injury which happened to the horse on Auchinbegg; but to my mind that is not so, as whether

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the pursuer was told to put the horse on High Stockbriggs or not, the horse was on Auchinbegg for two months, in the knowledge and under the care of the defender's shepherd, who on one occasion removed it from High Stockbriggs, to which it had strayed, and took it back to Auchinbegg. The defender's son, who assisted him in the management of his farms, was also aware that the horse was on Auchinbegg. As to the liability of the defender, the case is narrow. Certain portions of Auchinbegg lie above old mineral workings, and there have been subsidences or sits, but none had taken place for five and probably nine years before last September. The pursuer also was aware that the grazing was above mineral workings. But the hole into which the horse fell was seen some time before the accident. The witness Mr Muir senior saw it three years ago, his wife saw it years ago, and their son and Shaw last spring, another son and a cousin having told them of it. There was also some evidence that moss was growing in it. No doubt the defender's witnesses did not see it; but that will not detract from the fact that others saw it, although it proves that it was not very observable. Keeping in view that it was, seen, that the farm was known to be above shallow mineral workings and that subsidences had taken place, it seems to me the defender was bound to be peculiarly on his guard when he undertook to graze horses belonging to others, and to have fenced off dangerous parts. It is also an item of evidence against him that this hole was near a sit, and also near a water-run, to which horses would naturally be attracted, and that it was in a hollow, and therefore so much nearer the workings. The defender thinks the value of the horse was £45, but the other witnesses say £50, or above it.”

The defender appealed to the Sheriff ( clark), who on 8th February 1883 adhered to the interlocutor of the Sheriff-Substitute.

“ Note.—It may be taken as proved that neither party knew of the dangerous hole, though it had been in existence for some years. Yet such ignorance will not relieve the defender of liability. If he did not know of the hole, he ought to have done so; and if he did not intend to incur the risk of what might happen to the pursuer's horse when grazing in his field for payment, he ought to have communicated the fact to the pursuer, so as to put the latter in a position to make such modifications in his contract, or to abandon it altogether, as he might deem fit.”

The defender appealed to the Court of Session, and argued—That as the pursuer had failed to make out a case of fault against the defender, the loss must fall upon the owner. The evidence showed that the defender had acted with reasonable care and prudence; besides, it showed the pursuer was never authorised to put his horse into this field; he did it of his own accord, and at his own risk. He desired to look after the horse himself, and knew well about the mineral workings underneath the ground.—Bell's Prin., sec. 234.

Argued for the respondent—This was just an ordinary case of grazing for hire. The defender was bound periodically to have inspected his fields, especially as he was aware of the mineral workings and the liability of the ground to subside on that account. He failed to examine it with that care which a prudent man would show in taking care of his own property, and must be liable for the consequences.—Bell's Comm., vol. i., 488; Booth v. Wilson, 1 B. & Ald. 59; Broad—water v. Blot, Holt 547.

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