Scottish Court of Session Decisions

Elizabeth M'Cardle or Daily, widow of William Daily, carter, raised this action against Alexander M. Allan and John Grieve, the only known partners of the Saracen Pottery Company, carrying on business at 85 Denmark Street, Possilpark, Glasgow, for compensation for the death of her husband, who was killed as after mentioned.

The following facts were averred and admitted —the sagger or refuse from the defender's works was allowed to be removed from their yard by anyone who chose to come for it. On the day of his death, Daily, who was in the service of J. & G. Hamilton, Contractors, was sent to the defenders premises to fetch a cartload of sagger from the defenders' yard. The Denmark Street entrance to the yard was by a large arched opening, several yards wide, and was secured by a gate in two separate halves or divisions. Daily entered the yard and loaded his cart with the sagger, which was at the Denmark Street entrance. The gate was then only partly open, and there was no gateman or other person in charge of it. When the horse and cart were passing out through the partly opened gateway one of the cart wheels came against the shut half of the gate, which fell on Daily, knocking him down beside the cart, so that one of the wheels went over his body causing such injuries that he died the same day.

The pursuer further averred—“(Cond. 6) Said gate is, or was at said date, hung or placed in a very unusual, insecure, dangerous, and faulty manner, and but for this the accident after mentioned would not have occurred. In particular, said gate was so hung or placed as to be defective in the following points, viz., (1) It did not run in a groove; (2) There was no sufficient iron bar or frame hanging from above so as to prevent the door falling should the pulley be knocked off the said rail; (3) The said pulley ran on a rail of insufficient height and of defective formation; and (4) The pulley hanger ought to have been continued right down behind the beam on which the pulley rested, which might have prevented the pulley being knocked off said rail. (Cond. 7) In place of both sides or halves of said gate being pushed back or thrown open, so that the whole entrance to said yard might be free, the defenders on said date had the gate only partially open, so that an iron bar hanging from above, and meant to keep the gate in position and prevent it from falling, was rendered ineffectual for the purpose, and said gate being only partially open the width of the entrance was greatly curtailed, and there was no gateman or other person placed at said gate, as there ought to have been, to keep the same either open or shut and secure. Said gate ought to have been either altogether closed or altogether open. It was the custom of defenders only partially to open one-half of said gate, and to keep stored behind this half some crates or other articles belonging to them. (Cond. 10) The said William Daily was injured owing to the recklessness, carelessness, negligence, and fault of the defenders—(1) in omitting to have said gate fully opened or fully closed; (2) having no gateman stationed at the gate to take charge of the same, and regulate the traffic thereat, and the opening and closing of the gate; (3) owing to the insecure, dangerous, and faulty manner in which said gate was hung or placed in its position; (4) owing to the deficiency otherwise of said gate; or he was killed owing to some other fault on the part of the defenders, or those for whom they are responsible.”

The defence consisted of a denial of these averments, and of counter-averments that the space left open was sufficient for the egress of the horse and cart, and that if it had not been so Daily should have further opened it, and that the fall of the half of the gate was caused by his horse having run away.

The defenders pleaded that the action was irrelevant.

The Sheriff-Substitute ( Spens) allowed a proof.

The pursuer appealed to the Court of Session for jury trial.

The defenders objected that the case was irrelevant in respect there was on record no relevant averment of fault on the part of the defenders.

Page: 549↓

The pursuer replied—Similar averments arising out of similar circumstances were held relevant in Beveridge v. Kinnear, December 21, 1883, 11 R. 387.

At advising—