Scottish Court of Session Decisions

Lord Justice-Clerk—The question for the jury to decide in this case was whether the event complained of was caused by the defenders' fault in not putting a sufficient fence between the road and the burn. I think the pursuer was bound to know all the circumstances connected with the allegations made, and that it is not in his mouth to complain of surprise if the defenders at the trial founded on facts proved by him. The pursuer was not bound to set forth the whole details of his case, but to make his statement of facts sufficiently intelligible. The whole case went to the jury. Their verdict, which was for the defenders, was not upon a new issue, but was a verdict formed on the enquiry as a whole. I think there is no room for a plea of surprise here, and therefore I do not propose to disturb the verdict.

Lord Rutherfurd Clark—I concur. The issue was whether the pursuer's child was drowned through the fault of the defenders. That means the exclusive fault. The jury negatived the issue, and therefore that may mean either that the defenders were not in fault, or not in exclusive fault. I think they were entitled to take either view according to the evidence adduced. The evidence stood thus—The burn was fenced by the defenders. The pursuer thought it was not sufficiently fenced. But for a considerable time it had to his knowledge been fenced as it was at the time of the accident. I understand the jury thought that if the pursuer thought it unsafe, it was his duty not to wait until an accident took place before he gave notice to the Road Trustees that the fence was insufficient. Taking that view, they were, I think, quite entitled to say that the fault was not exclusively with the defenders, if fault there was at all.

Lord Kinnear—I think, as I thought at the trial, that the verdict is a good one, and supported by the evidence. What was proved was that the fence was sufficient for all purposes except that the lowest rail was at such a height above the ground that a child of two years old might possibly be able to creep under it if left alone and unwatched. It was also proved that children did do so occasionally, and in the present case that is what happened to the poor child who fell into the burn and was drowned.

Now, the pursuer proved — and took some pains to prove —that he himself and the neighbours were apprehensive of danger, and had been so for long. He also proved that other children had fallen into the burn. That being the view of the pursuer himself, it is out of the question for him to say that he has been taken by surprise. Counsel for the defenders pressed on the jury that these facts being proved by the pursuer, it was his duty to have given notice if he wanted the fence made safe against the possible occurence of such an accident as this. It was a fair ground to present to the jury that fault was not with the defenders, or if they were in fault, that the pursuer had shared in it, and the jury took this latter view.

Lord Trayner—After hearing Lord Kinnear's explanation of the case I entertain no doubts as to the propriety of the verdict. At first it seemed to me that a technical question might arise on the verdict on which an argument might be founded in support of a motion for a new trial. The jury, it was maintained, returned a verdict on the ground of contributory negligence which was not averred. If that had been clear it would have been a sufficient ground for a new trial. But I do not read the matter thus at all. I find the case for the jury was, “Were the defenders in such fault in not fencing the burn as to make them responsible for the death of the child?” Their answer was a denial, but they also made an averment of contributory negligence on the part of the pursuer by an averment that “the pursuer's child was negligently allowed by its parents to wander on to the said road without being under the charge of any person,” &c. That was a perfectly relevant ground of contributory negligence, and sufficient to entitle the defenders to succeed, if proved. The case went to trial, and the jury said, “We find for the defenders on contributory negligence,” and there the verdict proper ceases. They do not specify what is the nature of the contributory negligence, but just make a general finding as regards it. The rest of the verdict is more an observation on the part of the jury as regards the duty of the pursuer—“We think that the pursuer was inattentive to the interests of his own child, and that the defenders should in the future be more careful as to the condition of the fence;” but the true verdict of contributory negligence on the part of the pursuer negatived the issue.

Lord Young and Lord Craighill were absent