Scottish Court of Session Decisions

This was an action by John Fraser, residing in West Port, Edinburgh, against John Adam Bell, residing at 15 Lauder Road, Edinburgh, for £100 as damages for personal injuries under the following circumstances:—

On 24th March 1887 the pursuer, who was in the employment of John Smith & Sons, coal merchants, was ordered by his employers, along with another man, to take coals to the defender's house. The pursuer's fellow-workman carried the pieces of coal from a cart to the coal cellar, and the pursuer stood at the cellar door for the purpose of putting them in. While thus employed, a large dog belonging to the defender, suddenly rushed out of the house and sprang upon the man who was carrying the coals, and frightened him, with the result that he dropped a large piece of coal upon the pursuer's foot, so that, as he averred, it was severely crushed and injured.

The pursuer averred—“(Cond. 3) The injury sustained by the pursuer as aforesaid arose from the culpable neglect of the defender or of his servants at his residence, or of others there for whom he is in law responsible. The dog referred to, by its ferocious and sudden attack on the pursuer's fellow-servant as before stated, was the direct occasion of the pursuer's injury. It is believed and averred that the dog was of vicious and ferocious habits. The defender knew that fact, and that it was dangerous for strangers like the pursuer to pass near to it on his (defender's) premises. On occasions before the said accident the defender and others of his household had to take means to control it when attempting to jump on and alarmingly attack persons in a similar manner. On the occasion when the pursuer was injured as aforesaid, the dog had immediately before shown to the defender's servants in the house a vicious and ferocious inclination to rush out of the house and attack the pursuer and his fellow-servant while discharging the duty which they were engaged at on the premises. The defender knew that the pursuer had to convey the coals into his house on the date referred to. He also, knowing the dangerous character and habits of the dog, should have taken precautions by way of chaining up the dog while the pursuer was lawfully on the premises, or to have taken some similar precaution to prevent the dog getting out of the house at the time the pursuer and his fellow-servant were at the place for the purpose stated on the occasion referred to. The defender, however, culpably and recklessly failed to adopt precautions of any kind, or to give the pursuer any warning of the danger which existed from the presence of such a dog on the premises.”

The defender's first plea was that the action was irrelevant.

The Sheriff-Substitute ( Hamilton) on 18th May sustained this plea and dismissed the action.

“ Note.—In the opinion of the Sheriff-Substitute, the pursuer's statement shows that the occurrence through which he met with the injury libelled was purely accidental, and not one for which the defender can be held responsible.”

The defender appealed to the Court of Session, and argued—The action was relevant; there was no need of circuity of action, as the dog belonged to the defender. The pursuer's case was that the dog jumped at and tried to bite the pursuer's companion— Scott v. Shepherd, Easter Term, 1773, 3 Wilson's Rep. 403. There was culpa on the part of the defender in keeping a ferocious dog whose character he knew. To show that the dog was ferocious, it was not necessary to prove that the dog had bitten anyone previously— Burton v. Moorhead, July 1, 1881, 8 R. 892; Renwick v. Von Rotberg, July 2, 1875, 2 R. 855; Worth v. Gilling and, Another, November 2, 1866, L.R., 2 C. P. 1; Addison on Torts, p. 19.

The defender argued—The action was irrelevant. The occurrence was purely an accident. It was not relevant merely to aver that the dog was of a vicious character; the special circumstances in which he had shown vice must be stated. The case of Burton v. Moorhead was not in point; it was necessary to aver that it was unsafe to keep the dog. The averments were deficient in particulars, and did not give the defender sufficient information as to what case was to be made against him— Shaws v. Croall&Sons, July 1, 1885, 12 R. 1186; Holmes v. Mather, June 24, 1875, 10 L.R., Ex. 261.

At advising—