Scottish Court of Session Decisions

This was an action for £250 damages at the instance of John Darley Crawford, teacher of drawing, 30 Woodlands Road, Glasgow, against Matthew Cruickshank, merchant, Glasgow, and others, the surviving and accepting trustees of the deceased Daniel Henderson Lusk, Berkeley Street, Glasgow. The pursuer averred that on the night of Saturday the 15th September 1883, about 11 o'clock, he and a friend were standing on the pavement in front of a tenement at the comer of Bath Street and Elmbank Street, Glasgow, the property of the defenders, in front of which, facing Bath Street, there was a sunk area, about 5 1 2 feet wide, 3 or 4 feet deep, and 27 feet long, between the foot pavement and the tenement; that the sunk area was surrounded by a cast-metal railing to protect the public from falling in, the railing being of the usual height, and formed of upright balusters, fixed into copestones placed on the top of the retaining wall which surrounded the area; a metal strap or rail, through which the balusters passed, held them together; that he was about to part from his friend in front of the said tenement when he came slightly in contact with the railings, when about 15 feet, along with the copestone to which it was fixed, gave way and fell into the sunk area, and he (pursuer) was thus precipitated into the area, and severely injured. He further averred that the railing and copestones were in a bad state of repair, through the default of the defenders, and that their defective condition was known to the defenders.

The defenders denied the pursuer's averments, and averred that shortly before 11 o'clock upon the night in question the railing in front of their property was severely injured by an accident, of which their factor was not at the time made aware, and for which they were not responsible, and that about 11 o'clock the same night the pursuer carelessly fell into the area. They denied the alleged defective condition of their property, and refused to pay any sum to the pursuer. Their only pleas were—(1) The occurrence in question not having been caused by the fault of the defenders, or of those for whom they are responsible, the defenders should be assoilzied with expenses; (2) In any view, the damages claimed are excessive.

The following issue was sent to the jury:—“Whether, on or about 15th September 1883, in consequence of the defective condition of the railing of a sunk area in Bath Street, Glasgow, the property of the defenders, and through the fault of the defenders, the pursuer fell into the said area, and was injured in his person, to his loss, injury, and damage? Damages claimed, £250.”

The jury found for the defenders.

The pursuer having obtained a rule on the ground that the verdict was against evidence, and on the ground of surprise, counsel for defenders showed cause against the rule being made absolute.

It appeared from the Judge's notes of the evidence that Cunningham, the first witness for the defenders, had deponed that upon the night of the accident when standing with two friends at the end of a close near the place, he saw the railing in question was broken, and that he saw three men and a woman standing, that one of the men stood upon the cope, and deliberately shook the railing, and that the whole thing went down with him into the area. Upon cross-examination he stated further that the man, when he saw him was inside the railing, that he entered by the gap and pulled the railings into the gap. Similar evidence was given by David Robertson, another witness for the defenders, both in his examination—in-chief and upon cross. The defenders did not lead any further evidence as to the night of the accident, but led evidence to show that very shortly before the accident the railing was in good repair, and that it was of the ordinary kind for such a purpose. The pursuer argued that neither in the defences nor in the pleas-in-law for the defender had he received the slightest intimation of the defence upon which the jury must have found for the defenders; that it was first suggested in the evidence-in-chief of Cunningham and Robertson; and that this new defence came upon him as a surprise which he was not prepared with evidence to meet.

At advising—