Scottish Court of Session Decisions

On 31st August 1889 a collie dog which was being conveyed by the North British Railway Company from Kelso to Perth escaped at the Waverley Station, Edinburgh, and made its way to the Botanic Garden and Arboretum, a distance of more than a mile, where it severely bit a gardener named William Gray.

Gray brought an action against the railway company, averring that the company's servants when they received the dog were told that it was vicious; that nevertheless they failed to take proper precautions for its safe custody; and that its escape and the injury suffered by the pursuer were due to their negligence and want of care, for which the defenders were responsible.

The defenders pleaded—“(1) The action is irrelevant, and ought to be dismissed. (2) The pursuer, not having received the injuries of which he complains owing to the fault of the defenders, they are entitled to absolvitor. (3) The pursuer having received the injuries of which he complains owing to his having approached the said dog, though it was obviously dangerous to do so, the defenders should be assoilzied.”

On 8th February the Lord Ordinary ( Wellwood) repelled the first plea-in-law for the defenders, and assigned a day for the adjustment of issues.

The defenders having reclaimed, the Court adhered.

The issue adjusted for trial of the cause was as follows—“Whether on or about 31st August 1889, and in or near the Royal Botanic Gardens, Edinburgh, the pursuer was bitten by a dog which had been placed in the defenders' custody for transit from Kelso to Perth or elsewhere, through the fault of the defenders, to his loss, injury, and damage. Damages laid at £250.”

The trial took place before Lord Trayner and a jury on Tuesday 22d July 1890.

The following were the material parts of the evidence in the case bearing on the question whether the railway company's servants were in fault in letting the dog escape—William Thomson, a shepherd near Kelso, deponed that he had brought the dog up from a puppy. He had never seen any sign of vice or excitement about it. It was four years old when he took it to the station to despatch it to Perth. He gave the dog to the guard, and told him that it was a quiet dog. He offered the guard a muzzle, but the guard, on hearing from him that it was not accustomed to being muzzled, thought it was better unmuzzled. The dog was quiet and in its usual state when he took it to the station.

The guard of the train corroborated Thomson's evidence, and said further that the dog had a collar and chain. He tied it up in the van in the usual way. It lay very quiet all the way to Edinburgh. At the Waverley he untied it and handed it to George Redford, a parcel porter.

George Redford deponed—“When I got it (the dog) out of the van I did not like its appearance exactly at first. I clapped it. I led it along very gently to the parcel office. I let it stop. After it had stopped a change came over it. It commenced to bite at the chain very much. I took it to the parcel office and tied it up there. It was left there for the next train.”

John Ross, parcel deliverer, deponed—“I remember George Redford, the last witness, bringing the dog to the office. It was to go by the 1·17 train to Perth. It came by the train due at 12·10 from Kelso. When it was brought in it had a collar and chain upon it. It was fastened in the usual way at the back in the checker's box to wait for the train. We have kennels for dogs when they have to wait a whole day, but when a dog has just to wait between trains, our practice is to fasten it up in the office. I noticed nothing peculiar about the dog till it was tied up. When it was tied up I noticed that it was very vicious. It seemed to get excited, and snapped at its chain. It did not do any mischief there. About five minutes before one it was time to take the dog to the train. I tried to take it to the train. It went quietly out of the office

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at first, and made no effort to bite me when I unloosed it. I went down to the south platform with it. When we got to about opposite the stationmaster's office it began to jump about. It was not very serious; it was just trying to catch hold of its chain. I then began to see that the dog was excited and disposed to bite. I held it by the chain, keeping it at arm's length. It began to try and bite my hand. I held it so that it would not have so much purchase, and kept it on its hind feet. I held it so for three or four minutes, and the whole weight of the dog was on my arm. In the long run I could not hold it any longer, and had to let it go. It overmastered me. It ran down the platform and got between the footboard of a carriage and the platform. I think its hind feet got down on the rails, but did not get right down. I followed it down the main platform, where it crossed the road over to the side of the wall that looks to the Low Calton. It then came to the yard facing the stationmaster's house in the Low Calton. Ultimately it went through the Low Calton, across Leith Walk, into Broughton Street, and away down to the Botanic Gardens. I followed it the length of Warriston Crescent, where I lost sight of it. Another porter—John Luke—was with me. I came back and reported the matter to my superior officer.”

The result of the evidence of what took place after the dog reached the Arboretum may be shortly stated as follows — The dog having been observed in the Gardens, Professor Balfour, the Curator of the Gardens, told the gardeners to turn it out. While they were attempting to chase it out its chain got entangled in a railing. It was in a very excited condition. Two gardeners, of whom the pursuer was one, and a clerk in the Curator's office, then approached it. One put the head of a rake through its collar and held its head back, while the other disentangled its chain. They then fastened a rope to its chain and took it to the west gate of the Arboretum, where they left in the pursuer's charge, while the other gardener went for a policeman. Before the policeman came the dog flew at the pursuer, and bit him very severely in the hand. It was afterwards taken to the Dogs' Home, when the veterinary surgeon condemned it, and it was killed.

The jury returned a verdict for the pursuer, assessing the damages at £30.

The defenders applied for a rule, which was granted.

Argued for the pursuer—There was evidence that the dog was in an excited and dangerous condition in the parcel office, and the defenders' servants should therefore have taken more than ordinary precautions to prevent it escaping. His negligence in not taking such precautions was the cause of the dog's escape and the pursuer's injury, and for that negligence the defenders were responsible. There was accordingly sufficient evidence of culpa on the part of the defenders' servants to justify the verdict of the jury. The jury were also justified in holding that the pursuer was not in fault in trying to turn the dog out of the Arboretum, because he was acting in obedience to the order of his superior— Burton v. Moorhead, July 1, 1881, 8 R. 892.

Argued for the defenders—The defenders' servants were not proved to have acted in any way negligently or with a lack of due care. The dog had shown a little impatience at its long restraint, but had shown no signs of bad temper or viciousness till it began to struggle with the porter on the way to the Perth train. The usual precautions for its safe custody were therefore all that were required, and these were taken. There was absolutely no case of culpa on the part of the defenders' servants established on the evidence. Further, even assuming that the company's servants had been to blame in the first instance, their remissness was not the immediate cause of the accident, which was clearly on the evidence due to the rough treatment of the dog by the pursuer and the other officials at the Botanic Gardens. On both these grounds, therefore, the verdict was contrary to evidence, and should be set aside.

At advising—