Scottish Court of Session Decisions

This was an action by a coach-hirer in Causeway-side, Edinburgh, against the Edinburgh Street Tramways Company (Limited), concluding for the sum of £40 for loss and damage which he alleged he sustained in consequence of one of the defenders' tramway cars striking and overturning, on 1st January 1884, in Leith Street, a cab belonging to him. He averred that the collision had occurred through the fault of the defenders' car-driver, who had failed to give the cabman timeous notice of his approach by whistling, and had failed to draw up his horses in time to stop them and avoid the collision.

The defenders averred that, in accordance with the company's regulations, the car-driver was proceeding down Leith Street at a slow pace. As soon as he saw the cab on the rails he shouted and whistled, and put the brake on, at the same time throwing down sand, as the rails were in a slippery condition owing to the state of the weather; that the cab was stopped in front of the car at a distance which rendered it impossible to stop the car before it reached the cab; and the damage was caused solely by the carelessness and neglect of the driver of the cab, who might have avoided the collision at the last moment by taking his cab straightforward from where it stood.

The facts of the case, as ascertained in the proof, were as follows:—George Innes, who was the driver of the cab in question, was engaged by two gentlemen to drive them from the Tron Church to Powderhall. The day being New Year's Day, the streets were unusually crowded. He was driving the cab down the left side of Leith Street, and when he had proceeded about 50 yards down the street he was hailed by three men, who asked if he was going to Powder-hall. He stopped, drawing up as near to the pavement as he could get owing to the crowd of people who were passing down the street at the time, but the cab was not clear of the tramway rails, the off hind-wheel resting on the edge of them. Leith Street is narrow at that part, but there is more than room for a cab to stand between the left rail and the edge of the foot-pavement. Innes got off his box and went to open the door, and some little delay was occasioned by the party making arrangements about going to Powderhall. One of the party got into the cab, and while the second one was proceeding to enter, Innes, hearing the whistle of the driver of a tram car which was coming down the street, looked up and saw the car 4 or 5 yards from the cab, and too near him (as he stated) to enable him to draw his cab clear of the rails. The car then struck the cab, and Innes took the horse down the street, the car and cab being at the time in contact, the car, according to the pursuer's witnesses, pushing against the cab. The lock of the cab became fixed, and it overturned. Both horse and cab were damaged.

The Sheriff-Substitute ( Hamilton) issued this interlocutor:—“Finds it not proved that the overturn of the pursuer's cab on the occasion libelled was caused by the fault of the defenders' servant, the driver of the tramway car; and finds that in any view the person in charge of the pursuer's cab, who had stopped to take up chance passengers, was guilty of contributory negligence (1) in not drawing up his cab (as he might have done) clear of the tramway rails; and (2) in leaving his seat upon the box, going to the cab door, and there allowing his attention to be distracted by a discussion going on among the persons proposing to enter the cab, so that he did not hear the signals made to him by the car-driver until the car horses were within 4 or 5 yards of the cab, after which he was unable to get to his horse's head in time to draw forward the cab and so prevent the accident occurring: Finds, in these circumstances, that the defenders are not liable to the pursuer in damages: Therefore assoilzies the defenders from the prayer of the petition and decerns.

“ Note.—The Sheriff-Substitute decides the case upon the point of contributory negligence. But he is further of opinion that the pursuer has failed to establish fault against the defenders. No doubt if the car-driver had stopped the car at the head of Leith Street, and remained there until the cab had moved off, the accident would not have occurred. The Sheriff-Substitute, however, does not think he was bound to do this. It was enough that he went down the street at a cautious pace, using his whistle, and shouting to the cab-man as he approached. He could not anticipate that his signal would be unheard or disregarded.”

The pursuer appealed, and argued—The Sheriff—Substitute was in error in deciding the case upon the point of contributory negligence. The decision of the case really turned on the question whether the car-driver did his duty or not, and that question fell to be answered in the negative. It was his duty, as Soon as he saw the pursuer's cab on the rails, to have pulled up the car until the temporary obstruction was removed. It was not enough to whistle and shout to the cabman as he approached.

Authorities— Clerk v. Petrie, June 19, 1879, 6 R. 1076; Auld v. M'Bey, &c., February 17, 1881, 8 R. 495.

The defenders replied—1. The car-driver did all that could have been reasonably required of him in the circumstances. He shouted and whistled as he approached, put on his brake hard, and placed sand on the rails as the road was in a slippery condition. Besides, the car could not have been entirely stopped at that point. 2. But for the cab-driver's contributory negligence the accident would never have happened. He ought to have drawn up the cab clear of the rails, and he ought not to have left his box and given his attention to the altercation going on between the passengers as to the route.

At advising—