Scottish Court of Session Decisions

Charles Sutherland, carter, Meadowhill, Tranent, raised this action against the Prestongrange Coal & Fire Brick Company (Limited) for personal injuries sustained by him through fault of the defenders.

The pursuer averred that while he was filling his cart with coal from one of the defenders' hutches, another hutch was culpably and recklessly despatched along the rails without warning to him, by the fault of a servant of the defenders, and that it knocked him down and ran over him.

The case was tried by Lord Fraser and a jury, and a verdict was returned for the pursuer by a majority of seven to five.

The defenders then obtained a rule on the pursuer to show cause why the verdict should not be set aside on the ground, inter alia, that one of the jurymen had before the conclusion of the case visited the scene of the accident, and had examined for himself the locus and the method of working the hutches.

The Court ordered the defenders to procure an

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affidavit from the juryman, of whose conduct they complained, setting forth the facts. The affidavit contained this statement—“The evidence for the parties was finished on Saturday the 21st, and the case continued till Tuesday the 24th. On Monday the 23rd, I took the train to Prestonpans and walked to Morrison's Haven Pit, where the accident to the pursuer had occurred. I did not inform the agent on either side of my intention to do this. I went to the office of the company, and I there saw Mr Luke, the manager. He recognised me as one of the jurymen, and I told him I had come for the purpose of examining and seeing for myself the working of the pit-bank. Mr Luke conducted me over the place, and on my request showed me the different matters spoken to during the trial, including the shoving of the hutches, and the tilting both at the back and front shoots. I examined for myself the gangways, the rails and points, the cradles, and hutches, &c. I myself took a hutch, and pushed it along the rails for a few inches to enable me to ascertain the strength necessary to move it. I made an examination of the whole place. I told Mr Luke I had come merely to see the place, and that I would not speak a word relative to the case, and I carefully avoided doing so. Mr Luke did not seek to discuss the case with me. On the Tuesday morning when I arrived in Court I told the jurymen whom I saw that I had visited the scene of the accident on the previous day, but at this time there was no opportunity of discussing the matter. I am quite willing to state what passed when the jury retired if desired by the Court to do so.”

The pursuer showed cause, and argued—The visit of the juryman to the locus was a mere accident, and it would be hard to find that such could invalidate the verdict. The defenders could not assume that the juryman voted against them. It was true he was foreman, but his election as such was the first act of the jury, and he was bound to deliver the verdict whatever his opinion was. The ground relied on was not essential to the justice of the case. Suppose instead of going to see the place he had known it, and talked to his fellow-jurymen on the strength of this, that would not have been objectionable under the statute. [ Lord President—I think you cannot assume that that proposition is perfectly clear.] It would surely have been no objection if he had met someone on the street who had talked to him of the nature of the locus. The circumstances were actually in favour of the defenders, for their manager would make no observations hostile to them. It was admitted that between the beginning of the speech for the defenders, and the Judge's summing up, the defenders had received intimation of this visit, and no objection was taken then. They were willing to take the verdict if it had been in their favour, and could not now object— Williams v. Great Western Railway Company, 28 L.J., Ex. 2.

Argued for the defenders—It was a grave irregularity that one juryman should have obtained independent evidence. It was apparent from the terms of the affidavit that he had communicated his views to the other jurymen. He made himself a witness in the case. His oath was taken to return a verdict according to the evidence before him. So far as this juryman was concerned, the verdict proceeded on independent evidence. [ Lord Adam—Suppose the verdict had been the other, way, would it have stood, the juryman being in communication with the other side? ] No. The manager was a representative of the other side. [ Lord Fraser—The affidavit omits an important element. Did this juryman convey to his fellows the information he got or the impression that was made on his mind? He only says he is willing to state what took place in the jury's retiring room, but surely we ought to know that.] They thought it beyond their rights to ask what had occurred in the jury room without an order of the Court. The affidavit contained enough without this element. His mind must have been influenced by the examination he made of the locus, and the explanations of the working of the hutches given to him, and that was enough for their contention.

At advising—