Scottish Court of Session Decisions

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Cite as: [1890] ScotLR 27_707, [1890] SLR 27_707

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

[Sheriff-Substitute of Lanarkshire.

Thursday, June 5. 1890.

27 SLR 707

Kelly

v.

State Line Steamship Company, Limited.

Subject_1Reparation
Subject_2Quay
Subject_3Thoroughfare
Subject_4Obvious Risk — Primary Purpose of Quay for Loading and Unloading.
Facts:

A man while unnecessarily passing among materials lying upon a quay where loading operations were going on, fell and sustained certain injuries. It was not clear how the accident occurred, but he averred that those engaged in loading were in fault in leaving the materials there, and he sued them for damages accordingly.

Held that the quay was properly occupied by the materials at the time, that the pursuer had run an obvious risk in going where he did, and that he
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had failed to prove fault on the part of the defenders.

Observed that the primary purpose of a quay is for loading and unloading vessels, and that those who unnecessarily use it as a thoroughfare must take account of the work going on.

Headnote:

William Kelly, 73 George Street, Mile-End, Glasgow, brought an action in the Sheriff Court at Glasgow against the State Line Steamship Company, Limited, for £200 as damages for injuries sustained by him by the defenders' fault while he was passing along a quay where the defenders' steamship “State of Pennsylvania” was being loaded with stones and steel billets.

About 6 p.m. on 14th August 1889 the quay was occupied by stones and steel billets, which were being put on board the steamship in alternate loads. The billets were hoisted on board in two large buckets with handles, which weighed nearly a hundredweight each, and were kept rigid and upright by means of catches, which when released allowed the bucket to upset. These buckets were standing upon the quay while the stones were being shipped, one of them at least with its handle erect, although during the night and at meal hours the handles were lowered on to the ground. There was a passage about 3 feet wide between the billets and the edge of the quay. There was also a kind of passage through the middle of them, the use of which, however, involved some danger. There was a free passage at the back of the sheds. The pursuer, who was returning from an adjoining berth, and was not there on business, chose the passage through the billets, and as he passed the bucket with the upright handle he and the handle of the bucket fell simultaneously, and he sustained certain injuries. It was not clear what had caused the handle to fall, and whether he was struck by the handle or not. He alleged that he was, and that the cause of the accident was the faulty condition of the catch, which he had unwittingly released in his passage. He further averred that it was the defenders' duty to have seen that their machinery and plant was left on the quay breast in a sufficient and proper condition for the safety of the public using it.

After a proof the Sheriff-Substitute ( Lees) found that the pursuer had not proved that his injuries were due to any fault of the defenders, and assoilzied them accordingly. In his note he expressed his opinion that the statement by the pursuer that the handle fell upon him was untrue, and commented very strongly upon the unsatisfactory character of the pursuer's case.

The pursuer appealed to the Second Division of the Court of Session, and argued — That the quay was a public thoroughfare, and should be kept free from danger for those passing along it, and that the defenders were in fault in not keeping the passage clear, in having the billets there, in having a defective bucket, and in allowing the handle to remain upright while the bucket was not in use— Dakers v. Tharsis Sulphur and Copper Company, Limited, and Charles Tennant & Company, Limited, December 21, 1889, 27 S.L.R. 230.

The defenders argued—The case of Dakers was quite different. There the injured man was on his way to his ship, and the quay had been left in a dangerous condition and unlighted after working hours. Here the pursuer had no need to go that way at all. He might have chosen the street behind the sheds, or at least the safer passage by the edge of the quay. If he chose to climb over the billets, he did so at his own risk. The quay was being used for its legitimate and primary object of loading. The materials and the buckets properly occupied the quay at that time, and were a source of danger to no one who did not himself make them so.

At advising—

Judgment:

Lord Justice-Clerk—I do not think we have grounds here for altering the judgment of the Sheriff-Substitute. This quay was occupied with work going on which necessarily involved risk to passers by. It was quite plain to anyone approaching that such work was going on, and that the quay was occupied by materials and by appliances used in connection with these materials. In these circumstances the position of such a person necessarily is, that if he chooses to pass along he must take reasonable care for his own safety, and not go within reach of the danger if there is a means of avoiding it. He has still less reason for complaint if he fails to take advantage of a safer path provided and chooses the more dangerous passage. I do not think that those working at this vessel had any reason to suppose that persons coming along would use the passage which led right into the middle of the apparatus and the goods lying on the quay. In the first place, no person needed to come there at all. There was ample room outside the shed altogether. But in the second place, I am satisfied upon the evidence that if any person coming there had looked after his own safety he would have chosen the passage, some 3 or 4 feet wide, along the edge of the quay. The fact would seem to be that the pursuer, choosing the way he did, had to climb over the billets, though not perhaps over the whole pile, and that in doing so he fell and met with this accident. How the accident exactly occurred, or how he sustained his injuries, I am at a loss to understand. But it is not necessary to determine that. The pursuer had no need to be there, and must take the consequences of his own carelessness.

Lord Young—I also am of opinion that we should not disturb the judgment of the Sheriff-Substitute. I think the quay where this accident occurred was legitimately occupied by these materials. Traffic was going on when this accident happened just as traffic goes on along a street. The business of the quay is primarily for the loading and unloading of vessels. It is not a store for goods to lie in. People may use it for the purpose of passage if they choose, but they must have regard to the nature of the

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place, and take account of the traffic. The import of the evidence is that this accident occurred to the pursuer when he was unnecessarily clambering over goods which were legitimately there at the time, and in the proper use of the quay. He might have avoided the place altogether. I do not say he was bound to do so, but if he chose to clamber over these goods rather than to take the street outside, or the passage along the quay edge, he took a great and obvious risk upon himself. I do not think, looking to the whole circumstances of the case, that it has been established that the defenders were guilty of such fault or negligent carelessness as to contribute to the accident which the pursuer brought upon himself.

Lord Rutherfurd Clark concurred.

Lord Lee—I concur in the view that the Sheriff-Substitute's judgment should not be interfered with except on clear grounds. My only difficulty is that the Sheriff has dealt with the evidence and expressed his opinions in a manner which does not inspire one with confidence in the result at which he has arrived. I concur, however, with Lord Young in thinking that the defenders were legitimately in occupation of this portion of the quay for the primary purpose of loading this vessel, and on the question, whether the handle fell through their fault, I am against the pursuer, who has, I think, failed to establish his case.

The Court pronounced this interlocutor:—

“Find that on the occasion libelled the wharf mentioned in the record, appropriated to the use of the defenders, was occupied by them in loading a ship with billets of steel, which were piled up on the quay: Find that the pursuer did not require to pass along the said quay, but could have, equally conveniently, gone by a different route: Find that, if he did pass along the quay, he did not require to pass over or close to the pile of billets: Find that he passed over the billets: Find that he did so at his own risk, and that the injury sustained by him in doing so is not attributable to any fault or negligence on the part of the defenders: Therefore dismiss the appeal, affirm the judgment of the Sheriff appealed against: Of new assoilzie the defenders,… and decern.”

Counsel:

Counsel for the Pursuer and Appellant— Young— Irvine. Agent— W. A. Hyslop, W.S.

Counsel for the Defenders and Respondents— Jameson— Dickson. Agents— J. & J. Ross, W.S.
1890