Scottish Court of Session Decisions

When the Dundee and Arbroath Railway was made the line ran along an embankment in the neighbourhood of Broughty Ferry. The Railway Company possessed the land on each side of the embankment. As the town expanded the Railway Company resolved to feu this land, and they continued through it Brook Street of Broughty Ferry. They pierced the embankment with three openings at the point of its intersection with Brook Street, and gave their feuars an access through the embankment of “not less than 7 feet” in height. The middle opening of the three was intended to serve as a carriageway.

Broughty Ferry gradually approached and was built up around this point, and in 1864, as a populous place, adopted the General Police Act 1862. Among other streets the Police Commissioners appropriated Brook Street, and in levelling and metalling it they raised the roadway under the low arch of the embankment until it only possessed a headway of 6 feet 9 inches. No means were taken either by the Railway Company or by the Commissioners of Police to protect the public against the dangers of this low arch.

By the North British Railway Dundee and Arbroath Joint-Line Act 1879 the interest in the Dundee and Arbroath Railway was transferred to and vested in the Caledonian Railway Company and the North British Railway Company jointly and equally.

Between ten and eleven o'clock on the night of Saturday 8th December 1888 Peter Myles M'Fee, a cab-driver in Dundee, was engaged to drive from the Arbroath Station, Dundee, to Broughty Ferry. M'Fee reached Broughty Ferry shortly after eleven o'clock. On reaching the Ferry he drove along Brook Street. The bridge before mentioned spans Brook Street, and M'Fee drove right on with the object of passing under the bridge. In attempting to do this, M'Fee, who was sitting on the driver's seat, was jammed between the bridge and the roof of his cab, and killed.

His widow raised this action against the Police Commissioners of Broughty Ferry and their clerk David Stewart Littlejohn as representing them, and the Caledonian Railway Company and the North British Railway Company as a joint Railway Company, concluding for damages for herself and her two pupil children.

The pursuer averred—“The Railways Clauses Consolidation (Scotland) Act 1845, which was passed prior to the construction of said branch line, and which is incorporated in the Act authorising its construction, provides and enacts (section 42)—‘Every bridge to be erected for the purpose of carrying the railway over any road, except as otherwise provided by the special Act, shall be built in conformity with the following regulations (that is to say)— Width of Arch—The width of the arch shall be such as to leave thereunder a clear space of not less than 35 feet if the arch be over a turnpike road, and of 25 feet if over a public carriage road, and of 12 feet if over a private road. Height of Arch over Public Road.—The clear height of the arch from the surface of the road shall be not less than 16 feet for a space of 12 feet if the arch be over a turnpike road, and 15 feet for a

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space of 10 feet if over a public carriage road, and in each of such cases the clear height at the springing of the arch shall not be less than 12 feet. Height over Private Road.—The clear height of the arch for a space of 9 feet shall not be less than 14 feet over a private carriage road.’ The actual height of the centre opening or carriageway of said bridge at the time of the accident hereinafter referred to was 6 feet 9 inches, and its width 13 feet. In making said bridge of an insufficient height, and allowing it so to stand to this date, the defenders the Joint Railway Company and their authors, for whom they are responsible, acted in direct contravention of the Railways Clauses Consolidation Act, and of the obligations resting on them at common law to protect the public against any danger arising through their works… . The death of the said Peter Myles M'Fee was caused through the fault of the defenders. The said Railway Companies, as owners and users of said railway, failed to have and keep said bridge of the statutory height, or even of a height sufficient to avoid the ordinary and known dangers in the use of vehicular traffic, the said bridge being unsafe and most dangerously low, and being left without signal or warning of the danger. The said Police Commissioners failed in their statutory and common law duty of guarding the safety of said street, of procuring that the bridge over the same should be of sufficient height for ordinary vehicular traffic, and on the contrary, they culpably allowed the same to remain open for traffic without warning signal or other notification of danger, and without the place which was most dangerous being sufficiently lighted. Denied that there was contributory negligence on the part of M'Fee.”

The defenders pleaded contributory negligence in respect that the deceased was intoxicated. They further each asserted that the other was responsible for the accident.

The pursuer pleaded—“(1) It being the duty of the defenders the Broughty Ferry Police Commissioners, as custodiers of the streets of the burgh, to see that the streets are safe, and to do whatever may be necessary to protect the public against such dangerous places as this bridge was known to have been, and they having failed to do so, and the said Peter Myles M'Fee having been killed through their negligence, they are bound to make reparation to the pursuers for the loss they have sustained. (2) The defenders the Joint Railway Company having carried their railway across a public street by a bridge of insufficient height, and having failed to improve same, or to do anything to protect the public against same, after having learned that it was a source of danger, and the said accident having been caused by their fault, pursuers are entitled to reparation from them. (3) The death of the said Peter Myles M'Fee having been caused by the fault of the defenders as condescended on, decree should be pronounced in terms of the prayer of the petition.”

The Police Commissioners pleaded—“(1) The death of the said Peter Myles M'Fee not having occurred through any fault or neglect of the defenders the Police Commissioners of Broughty Ferry, they ought to be assoilzied. (2) The death of the said Peter Myles M'Fee having been caused and materially contributed to by his own fault, the said defenders ought to be assoilzied. (3) Separatim. The death of the said Peter Myles M'Fee having in any view been caused by a condition of said bridge for which the other defenders, the Caledonian Railway Company and the North British Railway Company, are alone responsible, the defenders, the Police Commissioners of Broughty Ferry, ought to be assoilzied.”

The Railway Companies pleaded—“(2) The pursuer's statements, so far as material, being unfounded in fact, these defenders should be assoilzied with expenses. (3) The provisions of the Railways Clauses Consolidation (Scotland) Act 1845, founded on by the pursuers, have no application to the facts, and are irrelevant. (4) The undercrossing in question having been made as an accommodation work incident to the feuing of the ground on either side of the railway, and having, along with the streets through said ground, been under the charge of the Police Commissioners of Broughty Ferry as solely responsible therefor, the defenders the Railway Companies had at and before the time in question no responsibility or liability with reference to the lighting, maintenance, or administration of the same. (5) The deceased's death having been caused or materially contributed to by his own fault or negligence, these defenders should be assoilzied with expenses.”

After proof the Sheriff-Substitute ( Campbell Smith) upon 7th December pronounced this judgment:—“Finds that on or about 8th December 1888 the pursuer's husband was killed by an iron bridge belonging to the defenders the Joint Railway Company, suspended over the carriageway of Brook Street, Broughty Ferry, said street being the property or under the responsible superintendence of the other defenders the Police Commissioners of Broughty Ferry: Finds that his death was caused by the fault of both defenders, to the loss, injury, and damage of the pursuer and her two children: Finds that the defenders' allegation of contributory negligence has not been proved: Assesses the damages at the sum of £100 for the pursuer herself, £100 in trust for her daughter Mary, and £130 in trust for her son Peter,—in all, the sum of £330 in name of damages and as a solatium: Finds the defenders liable in said sum of £330 to the extent of one-half each, and decerns against them accordingly in favour of pursuer: Finds said defenders also liable in expenses to pursuer to the extent of one-half each,” &c.

The Sheriff-Substitute founded on the following cases — M'Martin v. Hannay, January 24, 1872, 10 Macph. 411; Black v. Caddell, M. 13,905; Hislop v. Durham, March 14, 1842, 4 D. 1168; Chapman v. Parlane, February 25, 1825, 3 S. 585.

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The defenders appealed, and upon 26th October 1889 the Sheriff ( Comrie Thomson) recalled the interlocutor of 7th December so far as it decerned against the railway companies, but adhered otherwise to the Sheriff-Substitute's interlocutor.

“ Note.—I concur with the views of the Sheriff-Substitute as to the responsibility which rests upon the Police Commissioners, and upon that head I have nothing to add. But I differ from him in regard to the position of the other defenders. Subsequent to the year 1884 the railway companies had no power to touch the road in question. The Commissioners took it over, formed it, and have maintained it. The correspondence shows that they accepted the responsibility for it. But if they did so, it follows that they were bound to keep the road in such a condition that the public who were invited by them to use it should not be exposed to risk. As the road went under a bridge, the Commissioners ought to have provided for the safe passage of ordinary vehicles beneath it. I am therefore unable to find that at the time of the accident any duty in regard to the safety of the road lay upon the railway companies or upon any one else than the Police Commissioners. Neither of the defenders seriously pressed in argument the plea of contributory negligence on the part of the deceased. On this part of the case also I concur with the Sheriff-Substitute in the result at which he has arrived. Nor was any objection taken to the amount or to the distribution of damages which has been awarded. In the matter of expenses I cannot find any ground upon which the railway companies can in this action claim relief from the other defenders. The former were wrongly called into Court, but I gathered that they do not ask for costs against the pursuers.”

The Commissioners appealed to the Court of Session.

At advising—