Scottish Court of Session Decisions

At advising—

Lord Young—This is an action of damages, the pursuer alleging as his ground of action that he was run over and severely injured by a van belonging to the defender and in charge of his servant, and that this was owing to the fault of the defender's servant, for whom he is admittedly responsible if he was in fault. The Sheriff-Substitute and Sheriff have assoilzied the defender on the ground that the van-driver was not in fault, the immediate view apparently of the former being that it is proved that he called out, and not proved that he was driving furiously or too fast, or indeed at any other than a moderate pace. The evidence was fully brought before the Court in the argument, and was fully commented on, although the appellant, being a poor man, the Court indulged him by dispensing with printing. Since the debate I have read the whole proof carefully and continuously, and I have come to the result that the driver was in fault. There is conflicting evidence as to the pace, and also as to whether the driver called out to the appellant, who was certainly knocked down. I think the pursuer's witnesses say that the pace was faster than it really was, and that the defender's witnesses say that it was slower than it really was. My opinion is not founded on the pace. The driver was going at such a pace that he could without difficulty have pulled up in time; if not, that itself would have been fault. The appellant was walking along the road where he was entitled to be, and he was knocked down and hurt. The driver was not entitled to knock him down; it was his duty to avoid him. He could quite well have done so; and that he could, but did not, seems to have been because he thought that the man must get out of his way. There is prima facie fault leading to liability if a driver of a carriage so knocks up against a passenger. It is his duty to be able to pull up, and to do it, and not just to run over one who even from stupidity does not get out of the way. A man may stupidly get into the way of a carriage. I express no opinion on such a case as that, for each case of that kind must be judged by its own circumstances, and it may be that a driver, having a clear road before him, may count on an intelligent and even an unintelligent being not getting in before his horse, and might not be responsible for his doing so. But here the man was walking steadily along the road, and the van came up behind him and knocked him down. And my verdict is that the driver was to blame for not pulling up or turning to a side, but going straight on, leaving it to the appellant to get out of the way or take the consequences. I think we should recal the judgment, and find that the pursuer was knocked down and injured by the fault of the defender's servant, for whom he is responsible. The Sheriff-Substitute has given his opinion on the amount of damages, if any, which ought to be awarded, and he fixed £25—£10 for loss of wages and £15 for medical expenses and solatium. Nothing was said against that, and I propose that we should allow that sum.

The Lord Justice-Clerk, Lord Craighill, and Lord Rutherfurd Clark concurred.

The Court found that the pursuer was knocked down and injured by the fault of defender's servant, for which he was responsible, and awarded £25 damages.