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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Kechnie v. Couper [1887] ScotLR 24_252 (21 January 1887)
URL: http://www.bailii.org/scot/cases/ScotCS/1887/24SLR0252.html
Cite as: [1887] ScotLR 24_252, [1887] SLR 24_252
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SCOTTISH_SLR_Court_of_Session
Page: 252↓
Court of Session Inner House Second Division.
[Sheriff of Stirlingshire.
v.
Facts:
A man walking on a road was injured through being struck by a spring cart which overtook him, and which, though it was dark at the time, was being driven rapidly and carried no lights. The injured man did not hear its approach owing to deafness. Held that the owner of the cart was liable in damages for the injury.
James M'kechnie, a labourer residing in Torrance of Campsie, left his house at about five o'clock on the morning of the 8th February 1886 in order to proceed to his work in Glasgow. The morning was dark and foggy, and the roads were wet and slippery in consequence of a thaw following upon a severe frost. While he was walking towards Glasgow, and was on the part of the roadway on which carriages pass, he was knocked down by a milk cart which belonged to Thomas Couper, a farmer at Lennoxtown, and which he did not, owing to deafness, hear coming up behind him; he was injured in the left leg, suffered considerable pain, but lost no wages by the accident, as his employers paid him in full. He raised this action against Couper for £30 damages, on the ground that the injury was caused by the fault and negligence of the lad driving the cart, who was, the pursuer alleged, driving rapidly and without lights, and keeping no look-out.
The defender denied these averments.
After a proof, in which it was proved that the cart carried no lights and was being rapidly driven when the collision occurred, the Sheriff-Substitute ( Mitchell) found for the pursuer, assessed the damages at £10, and found the defender liable in the ordinary Sheriff Court expenses, though the sum recovered was within the limit of what might have been recovered in the Small Debt Court.
On appeal the Sheriff ( Muirhead) adhered, but assessed the damages at £5, and found the pursuer entitled only to Small Debt Court expenses.
The pursuer appealed, and argued that the damages awarded him were inadequate. He quoted on the question of fault— Gibson v. Molloy, March 20, 1879, 6 R. 890.
The defender maintained that no fault was proved.
At advising—
There is no doubt as to the mutual relations to one another of drivers of wheeled vehicles on the high road and passengers on it. We have frequently before now had occasion to consider them. There is an obligation incumbent on the former to take care not to come into contact with the latter. If the fault of the latter leads to the accident, that is a different matter. But the primary obligation is such as I have stated. Here the driver of the cart was in the wrong. If he could see the way clearly before him, probably there would be no necessity for him to carry lights, but if the morning was too dark for this, then he was bound to have carried lights.
The Sheriff-Substitute found the pursuer entitled to £10 of damages, but the Sheriff reduced the sum to £5, and also found the pursuer entitled to Small Debt expenses. I am entirely unable to understand the ground on which he made this alteration. I am of opinion that even the Sheriff-Substitute has been too niggardly in his allowance of damages, and in that view and on the whole matter I propose that we find the pursuer entitled to £20 and his expenses in both Courts.
The Court pronounced this interlocutor—
“Find in fact (1) that early on the morning of 8th February 1886 the pursuer, while walking on the public road between Torrance of Campsie and Glasgow, on his way to his work, was knocked down and severely hurt by a cart belonging to the defender; (2) that he was so injured by the fault and negligence of the defender's servant in charge of the cart in driving it rapidly in the dark without any precaution taken for the safety of persons using the road; (3) that the accident was not caused by any fault or negligence on the part of the pursuer: Find in law that the defender is liable to the pursuer in damages for the injury sustained by him as aforesaid: Therefore sustain the appeal, recal the interlocutor of the Sheriff-Substitute and the interlocutor of the Sheriff: Assess the damages at £20 sterling: Ordain the defender to make payment of that sum
Page: 253↓
Counsel for Pursuer— Salvesen. Agents— Gill & Pringle, W.S.
Counsel for Defender— Darling— Guy, Agents— Carment, Wedderburn, & Watson, W.S.