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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Flood v. The Caledonian Railway Co. [1889] ScotLR 27_127 (30 November 1889)
URL: http://www.bailii.org/scot/cases/ScotCS/1889/27SLR0127.html
Cite as: [1889] SLR 27_127, [1889] ScotLR 27_127
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second division.
[Sheriff of Forfarshire.
v.
Facts:
A railway company by agreement with a neighbouring proprietor emptied from their waggons opposite his property quantities of waste-soil. The line was blocked for traffic while the waggons occupied it for this purpose. The first duty of the company's servants was to
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clear the signal-wires at the side of the line on which the soil was discharged. When this was done the waggons left, the line was re-opened, and the proprietors' servants were allowed to remove the soil at their convenience. A discharge of soil had been made in the evening, and the wires had been so cleared as to work. On the following morning one of the proprietor's workman was removing the soil that had been left between the wires and the line when he was killed by a passing engine.
In an action of damages by his widow against the railway company the jury unanimously found for the pursuers on the ground that there was blame attachable to the railway company's servants in leaving the soil inside the signal-wire, there being no evidence to show that the contractor's men were not forbidden to remove it.
The defenders obtained a new trial, on the ground that the verdict was contrary to evidence. The jury once more found unanimously for the pursuer, on the ground that the railway company's servants did not properly clear the space between the rails and the wire, and that the railway company should have instructed their engine-drivers to whistle and slow when approaching this particular part of the line where they knew the men were employed.”
On the motion of the defenders the Court granted a new trial, on the ground that the verdict was contrary to evidence (1) as it was contrary to the deceased's duty and unnecessary for him to go between the signal-wires and the line; (2) as there was no duty on the defenders' servants to remove the soil to a greater extent than they had done; and (3) that no blame was attachable to the company for insufficient precautions, as the company had no reason to suppose that the men employed were in danger.
This was an action for damages by Mrs Bridget Flood for the death of her husband, who was killed by an engine belonging to the Caledonian Railway Company.
Bernard Flood was one of a gang of nine labourers engaged by Mr Will, contractor, Dundee, who were employed in filling up with waste soil or “spoil a piece of ground belonging to Mr Keillor of Binrock, and adjoining the line of the Dundee and Perth Railway, the propertyof the Caledonian Railway Company. The“spoil” was, by agreement between Mr Keillor and the railway company, brought along the line in railway waggons, and emptied on to the embankment immediately opposite the place where it was to be used. The line was blocked to traffic on both sides while the waggons were there. The company's servants, usually helped by Will's men, immediately proceeded to clear the signal-wires on the side of the line where the spoil was thrown. When this was done the waggons were removed, the line was reopened, and Will's men took away the earth at their convenience. On the evening of the 28th August 1888 a discharge of spoil had been made, and on the following morning Flood was clearing the wire, and was bending down with one foot on each side of the wire, his body being about 18 inches from the line, when an express train, going at the rate of thirty or forty miles an hour, struck and killed him. His widow brought this action for reparation in the Sheriff Court at Dundee.
She averred—“Although the said ground was being made up, and the line and signal-wire cleared according to arrangements with the defenders, and although it was well known to them that the deceased and the others of the squad were engaged as aforesaid on the morning in question, no precautions of any kind were taken by the defenders to warn them of approaching trains. In particular, the said express train, although it was well known by the driver that men were working at that spot, did not blow its whistle as a warning of its approach. Counter-statement denied. Owing to the nature of the ground where the deceased was working, and the work in which he was engaged, it was impossible for him to keep an adequate look-out. Further, he was not accustomed to railway work, and in assisting the defenders' servants in clearing away said rubbish, he was entitled to rely, and did rely, on their taking adequate measures for his protection, and it was the duty of the defenders, when the deceased and other labourers were engaged as above mentioned, to give warning of approaching trains, or to adopt such measures as were usual and necessary for their safety, and, in particular, to cause the whistle of such trains to be blown, but they culpably and negligently failed to do so. Counter-statement denied.”
The defenders answered that it was no part of the deceased's duty to go upon the line, and that the accident was the result of his own negligence, and further, “that in any event the accident was a risk of the deceased's employment.”
Upon 7th November 1888 the Sheriff-Substitute ( J. C. Smith) dismissed the action as irrelevant.
Upon 31st December the Sheriff ( Comrie Thomson) recalled the interlocutor of the Sheriff-Substitute, and allowed both parties a proof of their averments.
“ Note.—The averments are not quite satisfactory, but they seem to amount to this—that the deceased was entitled to be on the defenders' line of railway at the time of the accident; that the defenders' servants knew that the squad to which he belonged was working at the place, and that usual and reasonable precautions were not taken. It seems to me that the pursuer has set forth a case for inquiry as to the facts.”
The pursuer appealed to the Second Division of the Court of Session for jury trial, which took place upon 22nd March 1889 before Lord Lee and a jury.
It appeared that it was the duty of the company's servants to clear the signal-wires from the fall of the spoil, and in this they were usually helped by Will's men.
John Keith, railway inspector, who had
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charge of the waggons in this employment, deponed—“We had arrangements for Will's men helping to discharge the waggons. When the waggons were emptied the company's men helped to clear the line and clear the wires. This was not done while the waggons were standing. The company's men did not leave the place with the waggons. I had no right to give Will's men any instructions. The arrangements I made were that the stuff should be cleared from the line and wires at once, and a few minutes would do it. Either I or my foreman was always there to see it done. It was the company's men that were responsible for doing it. We did not count on Will's men for that, but for emptying the waggons. If spoil was left between the rails and the signal-wire, Will's men had no business to meddle with it. It was not harming anything. Our men looked after keeping the line and wire clear. I don't know that I ever observed Will's men clearing away stuff between the rail and the signal-wire. My men cleared the rails and the wire sufficiently to let it work, and then left. As the spoil between the sleepers and the wire was doing no harm we did not touch it. The spoil between the sleepers and the wire would not impede the traffic. It was always reduced every time sufficiently in a few minutes. There was no necessity for Will's men to go within the wire. To do so would have been to go out of their place. Any man outside of the wire would have been clear.” It further appeared that upon the morning of the 28th several waggons with spoil were sent to this point of the embankment, and that Will's men and the railway company's men emptied the spoil on the embankment, and afterwards cleared all spoil from the signal-wires. The line had been blocked during all this operation, but when it was done the block was removed. The deceased on the morning of the 29th was standing with one foot on each side of the signal-wires with his back to the line clearing spoil from between the wires and the line when the train struck him. He had not been ordered to put himself in that position, and it was not a usual or even necessary position to occupy. The engine-driver deponed—“I knew there were men working in the bog at Binrock. Never saw them working on the line. Never saw them working at the side line on the footway were the wire goes. If I had seen any men working between the sleepers and wire I would have whistled. It was not a place where we had to whistle regularly, but I would have whistled if I had seen a man. I was keeping a good look-out. When there are platelayers or a surfaceman working on the line, the rules of the company provide for the working of the traffic. Cross-examined—I had been driving that train occasionally for twelve months, off and on. I whistled regularly at Ninewells Junction, about half-a-mile off.”
Some of the deceased's fellow-workmen deponed that they did not hear the engine whistle that morning.
The jury returned a unanimous verdict for the pursuer, damages £50. In answer to a question by the Judge, the jury handed in this note as containing their view of the fault to which the accident was attributable—“The jury, seeing there was blame attachable to the railway company's servants in leaving the spoil inside the signal-wire, and there being no evidence to show that the contractors men were not forbidden to remove it, unanimously find for the pursuer, damages £50.”
Upon 22nd June a new trial was granted on the motion of the defenders, which took place upon 25th July. The only additional evidence of any importance was that one witness stated that he did not hear the engine whistle at Ninewells station as it usually did on that morning. The engine-driver stated that notices of any place where men were working on the line were usually posted in the engine-house at Perth, but that no notice regarding this place was posted.
At this trial the jury were “unanimous in their verdict for the pursuer, on the ground that the railway company's servants did not properly clear the space between the rails and the wire, and that the railway company should have instructed their engine-drivers to whistle and slow when approaching this particular part of the line, where they knew the men were employed; and they award to the pursuer damages to the amount of £150 sterling.”
The defenders obtained a rule on the pursuer to show cause why a new trial should not be granted.
The pursuer argued—The jury had given their verdict on fair jury questions. They had affirmed that the deceased was within his right in clearing away the spoil in the manner he did, and it was quite a fair jury question whether a man who was engaged in clearing away obstruction from the railway line, which had been placed there by the railway company's servants, was to be so constrained that he could not clear it away in the manner that seemed best. It was also a fair jury question whether the railway company had taken the proper precautions to ensure reasonable safety to the deceased. The railway company knew that men were working there, as they were also engaged in the work.
The defenders argued — There was no evidence that the deceased Flood should have put his foot over the signal-wire in the manner he did. All the evidence was to the effect (1) that it was not his duty to clear away the earth from the signal-wire at all, and (2) that if he chose to do so, he might have done it from the outside of the wire. Again, if it was the duty of the company to give orders to the engine—drivers to whistle in approaching a particular spot where men were known to be working that principle did not apply here. The railway company did not know that men were working on this part of the line. The company no doubt sent waggon loads of earth and emptied them out at this particular spot, but Will's men then took it away at their own convenience, and without intimation to the railway company.
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Again, in taking it away the contractor's men did not need to expose themselves to any risk, as they could work from the outside of the wire altogether. There was no evidence that any of the railway servants had done anything, or had omitted to do anything, that could make the company liable. The test was to see if any of the company's servants had individually committed some fault which led to the accident in question, and no fault was shown. At advising—
Now, what happened was this—The deceased man Flood when engaged in clearing away the spoil from the bank got his feet over the signal-wire—a thing which he could not have done accidentally at all—for the purpose of clearing away some of the spoil which had fallen on the inner side of the wire, which, so far as I can see, need not have been removed at that time at all. The only time it was necessary to remove that was after the last delivery of spoil, when the whole thing was cleaned up. Before that the clearing away of this small quantity would be just making room for more, which would have to be removed again. At all events, whether it required to be removed or not, it was quite contrary to Flood's duty to go at all between the signal-wires and the rails, and in addition to its not being part of his duty it was quite unnecessary for the purpose of removing that spoil. Now, in these circumstances I think it is quite plain there was no need whatever for this man putting himself, or for any of the workmen engaged there putting themselves, in circumstances of danger at all. If they did so, they were going outside their duty, and quite outside the necessities of the work in which they were engaged.
Now, if that is so, then comes the question, whether there is any evidence to justify a verdict which holds that the railway company were in fault for not having done certain things which would only need to be done upon the footing that the people employed at the side of the railway there had to put themselves occasionally in a position of danger. In my judgment it would rather invite persons to put themselves in a position of danger if they knew that precautions were taken to prevent them being in danger, in a case where neither their duty nor the necessities of the work in which they were engaged called upon them to go into any danger at all. The verdict which the jury returned gives not merely their finding for the pursuer but also the grounds of that finding. The first ground is that the railway company's servants did not properly clear the space between the rails and the wire. Now, there was no duty, so far as I see on the evidence, upon the railway company's servants to do anything of the kind. The evidence is that the stuff which might lie between the rails and the wire after the wire had been cleared was practically of no consequence, and therefore there was no duty upon the railway company's servants, so far as the evidence is concerned—and with that alone we have to deal — to clear that space between the rails and the wire.
The second ground upon which the verdict is returned is that the railway company should have instructed their engine-drivers to whistle and slow when approaching this particular part of the line where they knew the men were employed. That finding necessarily assumes that the railway company were in the position of knowing that men employed at that place who were not their own servants would be upon the line or in circumstances of danger by being so close up to it that they might be knocked down by a passing train. In the view I have taken of the evidence, which I think
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Upon the whole matter, though I very much regret it should be so, I have come to the conclusion that there is no evidence whatever to justify this verdict. It is not a question of weighing the value of testimony, or taking testimony and seeing on which side the greatest weight lies. I have found nothing in this evidence to justify the verdict at all, and therefore I think the Court has no alternative except to set it aside as being without evidence, and to order a new trial.
Now, I agree with your Lordship that we must generally defer — and generally defer at once—to the opinion of the jury upon a balance of conflicting evidence or upon the credibility and reliability of witnesses, and there are perhaps other matters, such as the amount of damages, upon which we should, and generally at once, yield our opinions to the opinion expressed by the jury. There are cases more or less exceptional, in which, although the question did turn upon the balancing of conflicting evidence and determining upon the credibility and reliability of opposing witnesses, the Court have granted a new trial, seeing ground to doubt the conclusion at which the jury have arrived—it being doubtful whether the case has been properly presented—and upon the whole matter have thought that the ends of justice required that the case should be submitted to another jury. In these exceptional cases i think the rule upon which we have proceeded is, that if a second jury agrees with the first in balancing the conflicting testimony in the same way, or determining upon the credibility and reliability of witnesses in the same way as the first, although we still doubted their conclusion, we should not interfere any further. But there are other cases in which I, for my part, should set aside the same verdict upon the same evidence just as ofen as it was returned. Let me illustrate this by just a simple example. Suppose a man crosses a railway — is crossing the line, having no occasion whatever to cross—and is run down by a train, and the jury return a verdict for his widow with damages against the railway company, that they had no right to run down the man, and must make compensation to his widow. I have seen such verdicts, and a late learned counsel, whom we all knew and respected, used to say—“Give me a widow as pursuer and a railway company as defender, and I will tell you what the verdict will be without any regard to the evidence at all,” and he would state cases in his own experience for that. Well, if that not unamiable sympathy was manifested by a jury, finding that the railway company were to blame for not stopping an express train—which was an impossibility, although the possibility or impossibility might be represented as a jury question—so as to avoid running over a man who, it might be, was running away from a policeman, but who at all events was crossing the line, having no occasion to cross it at all, and running into that dangerous position carelessly and improperly—I, for my part, should set aside that verdict just as often as it was returned. One cannot censure in strong language the conduct of a widow in proceeding to trial after trial in expectation of the sympathy of the jury manifesting itself time after time in the same way, and the Court being tired at last with granting new trials, and desirous to avoid the scandal of being in conflict with the jury. But I am sure that no widow or no others would pursue such a course as proceeding to trial after trial conscious that there was no other evidence than that which the Court had, after deliberation, pronounced to be such as would not sustain
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Now, I think there was here no question of credibility or reliability at all, and I think there was no conflict of evidence. It was perfectly clear that there was no evidence of fault on the part of the railway company. I do not think it a light matter to impute blame even to a railway company leading to the death of a human being. It is not a thing to be done lightly, or otherwise than upon grounds justifying in reason and conscience that conclusion. The railway company as a company is of course blameless. It is a corporation which must conduct its business through individuals employed by it for the purpose, and therefore when blame leading to the death of a human being is imputed to the railway company, it is imputed to some person or persons in its employment, who ought to take blame to themselves for the death of the man if they regard their conduct rightly. Now, who was supposed to be to blame here? The engine-driver? Ought he, if he regarded his conduct rightly, to take blame to himself for the death of this man? Nobody in his senses would say so. It would be a most unjust accusation upon any evidence that was before us. Ought any of the railway company's servants who emptied those waggons about twenty-four hours before the accident occurred—ought he, if he regarded his conduct rightly, to have taken blame to himself for the death of this man? Was any jury entitled to affirm that? Then there was something about posting a notice up at Perth. Who is the railway official that ought to have taken blame to himself for the death of this man because he had not posted up a notice at Perth?
The case was a very clear and simple one. The railway company had agreed with Mr Keillor — they had agreed with him to supply him with a quantity of earth. They brought this earth in their waggons to where Mr Keillor was desirous to have it. It had been going on for months before this, and the railway company's waggons were, as your Lordship has explained, emptied always in the same way. The railway company's men were assisted sometimes—or we may take it always—by men in the employment of Mr Will, who was contractor for Mr Keillor, to get the waggons emptied out as quickly as possible, and immediately after the waggons were emptied out, and while that was going on, they cleared the signal-wire, which was within three feet of the railway, and that was done at once, to allow the signals to work. That was always the first thing done, and it was always done upon every occasion during the several months that this work had been going on. Upon the occasion immediately in question waggons were emptied in the usual way, and the signal-wire was cleared, and the line opened for traffic by 11 o'clock on the forenoon of the 28th of August, and everything went on upon the railway thereafter just as usual from 11 o'clock on the forenoon of the 28th until this happened, between 8 and 9 on the morning the 29th, because as soon as this stuff was out of the waggons and on to the ground, and the railway signal-wire cleared, it did not signify to the railway company when it was taken away. It might be there for a day, or a week, or a month. Their traffic went on just as before. It was in the discretion of Mr Keillor, or his contractor Mr Will, to take it away when it suited their convenience. It suited their convenience upon this occasion to proceed to take it away about twenty-four hours after—that is, between 8 and 9 on the morning of the day after it had been so laid down and the wire had been cleared.
Now, that was done upon this occasion as upon every other without any communication whatever with the railway company. The railway company did not know, and could not know, when it would suit the convenience of Mr Will and his men to come and remove this stuff and fill up the hole with it. They might do it when they pleased. Could it be done with safety? of course it could. Is there any conflict of evidence upon that? It had been done with absolute safety upon every occasion previous to this during the three or four months this had been going on. Then, how did this accident happen? It happened admittedly—and here there is no question or dispute either—by the unfortunate deceased having without precedent put himself between the railway signal-wire and the line so as to be within reach of a passing train. That he had no occasion whatever to do so is the uncontradicted evidence in the case. That he himself had never done it before is uncontradicted. That nobody else employed by Will in removing the stuff had ever done it before is proved by uncontradicted evidence. Here we have no balancing of testimony either. Therefore the accident is attributable to this poor man having unfortunately, unnecessarily, put himself in a position of danger—of obvious danger—which he had never done before, which nobody else had ever done before, and which nobody ever had occasion to do. Well, how is the railway company to blame? I have already pointed out that there is no evidence of anybody being in fault at all on the part of the railway company, and that nobody could conscientiously say that anyone in the service of the railway company, if he viewed his conduct aright, could say “I am to blame.” And I do not think the jury here can have taken that right view of their duty which would have induced them to avoid giving
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I have therefore no hesitation whatever, although this is a second verdict, in setting it aside as unwarrantable, unsupported by any evidence which in any rational view could sustain it, and if the pursuer or her friends—contrary, I am sure, to any professional advice which she can receive—should proceed to trial again, conscious that she has no other case than that which has been presented already, and which the Court has emphatically pronounced to be insufficient to support the verdict, I for my part should set aside another verdict in the same way.
The Court pronounced the following interlocutor:—
“The Lords having heard counsel for the pursuer on the rule granted by the preceding interlocutor, make the rule absolute, and grant a new trial, reserving all questions of expenses.”
Counsel for the Pursuer — The Lord Advocate— A. J. Young— Hay. Agent— W. Kinniburgh Morton, S.S.C.
Counsel for the Defenders— D.-F. Balfour— R. Johnstone. Agents— Hope, Mann, & Kirk, W.S.