Scottish Court of Session Decisions

John Duff, house painter, Edinburgh, raised an action against the National Telephone Company (Limited) concluding for payment of £250 as damages and solatium for the injury and subsequent death of his son William Henry Duff, who, he alleged, was fatally injured through the fault of the defenders.

The pursuer averred—“On Sunday the 26th August 1888, about twelve o'clock noon, a child of the pursuer named William Henry Duff, three years of age, was playing with some other children in a lane leading from Gayfield Street to Broughton Court. Some of the said children were playing with a two-wheeled hurley belonging to the defenders, which had been left in the lane by the defenders' workmen. The hurley was entirely unprotected, and two of the children had got on to it, and were swinging on it, when they slid to the back of it, and brought it suddenly and violently down on the bead of the said William Henry Duff. It struck the said William Henry Duff, causing a deep wound on the front part of

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the head.” The wound was dressed immediately after the accident, and an operation was performed on the 1st September, but the child got worse and died that evening. The pursuer further averred—“The defenders have a small enclosure or other place in the said lane into which the hurley could have been put, and had this been done the accident would not have occurred. The said hurley was left in the open lane, where it ought not to have been left, and where the defenders had no right to leave it. Neither of its wheels was locked, and no precaution whatever was taken against such an accident as has occurred.”

The defenders averred—“The said barrow was chained to the wall. The lane is a private lane, and the defenders were accustomed to leave their barrow there, as it was too wide across the wheels to be taken into their workshop, which adjoins the lane. The barrow was of the usual construction, and was not a dangerous article. The reason for the defenders chaining it was to prevent its being interfered with by unauthorised persons. The defenders believe and aver that the accident was due to the fault or carelessness of the child himself, or of the other children with whom he was playing. They further aver that it was the direct consequence of the fault or negligence of the pursuer, or those for whom he is responsible, in allowing a child of such tender years to go about without the care or superintendence of some person fit to take proper charge of him. The pursuer knew quite well that the barrow used to be left in the said lane, but he never made any complaint to the defenders regarding the same.”

The defenders pleaded, inter alia—“(2) The defenders are entitled to absolvitor, with expenses, in respect that the death of the pursuer's child (1st) was not caused by fault on their part; (2d) that it was caused by the fault of the said child, or his companions; or (3d) that such last-mentioned fault materially contributed to the said accident.”

The pursuer proposed the following issue for the trial of the cause—“Whether on or about 26th August 1888 William Henry Duff, son of the pursuer, was, while in a lane leading to Broughton Court, Edinburgh, struck by a hurley and injured in his person, and soon thereafter died of said injuries, through the fault of the defenders, to the loss, injury, and damage of the pursuer? Damages claimed, £250.”

By interlocutor of 27th February 1889 the Lord Ordinary ( Fraser) disallowed the proposed issue, found that the pursuer had made no relevant averments in support of the conclusions of the summons, and dismissed the action.

The pursuer reclaimed, and argued that the defenders on their own admission had been fault in leaving the hurley in an exposed place unprotected. It ought to have been so placed that the children could not have got at it, and the defenders' failure so to deal with it rendered them liable for the consequences— Campbell v. Ord, November 5, 1873, 1. R. 149. It became a dangerous article from the locality in which it was left— Findlay v. Angus, January 14, 1887, 14 R. 312.

Argued for the respondents—There was no relevant averment of fault on the defenders' part. The accident was entirely caused by the pursuer allowing so young a child to go about. unattended. A hurley was not a dangerous article which required fencing or protection like machinery, or which required a person in attendance like a horse in a public thoroughfare. The proposed issue was properly disallowed— M'Gregor v. Ross & Marshall, March 2, 1883, 10 R. 725.

The case was heard by the Lord Probationer, who delivered the following judgment:—