Scottish Court of Session Decisions

James Adams, Aberdeen, sued the Town Council of Aberdeen for £100, as damages for injury done to his son aged nine, under the following circumstances, which appeared in the proof. The defenders having ordered the common sewer in Union Street to be cleaned, employed three men in the operation. It was performed as follows:—A scrubber to which a chain was attached was introduced into the sewer, and drawn backwards and forwards by means of two crab winches from a manhole in St Catherine's Wynd to a manhole in Union Street. The latter was protected on three sides, the front part of it alone being open to the extent of 2 feet in width, and over it two men were working a winch, another man guarding the manhole in St Catherine's Wynd. A crowd following a drunk woman who was being led to the Police Office, passed the men. The lad ran after the crowd, and just as he was at the manhole he turned to look back over his left shoulder and ran right into the hole before the men could call out to him. The result was he received the injuries which led to this action being raised.

The Sheriff-Substitute ( Dove Wilson) found that the pursuer had failed to prove that the accident happened through the fault or negligence of the defenders' servants, and therefore assoilzied the defenders from the conclusions of the action.

“ Note.—I do not think the defenders can be blamed for the accident. It was necessary for them to have the manhole open in order to clean the sewer, and it is impossible for the defenders, though they are bound to keep the streets safe, always to have the streets in such a state of safety as to dispense with the exercise of reasonable care on the part of those using them. The men were working at the manhole at the time; they had three sides of it protected; and the fourth, which was open for use, was a danger only to a person who came rapidly upon it without looking. The open part was two feet wide, and the winch which the defenders were working over it was a conspicuous object. The place, though open to the extent stated, was not left unguarded, as there were two men working at the winch at the time, and both so engaged as to be facing the open side. In these circumstances the pursuer's son having left the footpavement to walk or run along the carriageway after a crowd, turned round to see some person or thing behind him, but did not stop, and before the men could even call out, fell down the hole. It seems to me the main cause of the accident was the pursuer's son's want of forethought, and not the defenders' operations. He had gone unnecessarily upon a part of the street where care is always necessary, and he had neglected to use it.

The circumstances of the pursuer's son being very young does not make much difference. He was old enough to know that he should not have been in the middle of the streets without keeping a look out, and if he was not old enough to take care of himself, he should not have been permitted to be where he was without someone to look after him. The boy's youth would only have been a material point in the event of distinct negligence having been proved on the defenders' part, and I cannot say that I think that the having the manhole open was, in the circumstances, an act of negligence.”

On appeal the Sheriff ( Guthrie Smith) adhered.

The pursuer appealed, and argued—It was the duty of the defenders to have had the manhole fenced in a sufficient manner in the interests of the public using the thoroughfare. But for the insufficient fencing the accident would not have happened, and the defenders' must be held liable for the omission.

Authorities — Auld v. M'Bey, February 17, 1881, 8 R. 495; Burton v. Moorhead, July 1, 1881, 8 R. 892; Frasers v. Edinburgh Street Tramways Company, December 2, 1882, 10 R. 264.

The Court did not call on counsel for the respondents.

At advising—