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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Foster v. Rintoul [1891] ScotLR 28_636 (13 May 1891)
URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0636.html
Cite as: [1891] ScotLR 28_636, [1891] SLR 28_636
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SCOTTISH_SLR_Court_of_Session
Page: 636↓
Court of Session Inner House Second Division.
[Sheriff of Fife.
v.
Facts:
A cyclist rode a bicycle at the rate of six or seven miles an hour through a town when a number of people were standing or sauntering in the street. On overtaking a group of four persons he blew his whistle and they got out of his way with some difficulty. In consequence of the obstruction caused by these persons he did not see that a little girl of five years old was running down a cross street, and in the result she got in front of the bicycle and was knocked down and injured. In an action for damages by the child's father, held that the defender was in fault in not having his bicycle under such control that he could have stopped and so avoided the accident.
Upon 10th August 1890 while Richard Rintoul was riding a bicycle in one of the streets of Kirkcaldy he ran over and injured a little child about five years old.
Her father George Foster, potteryworker, residing in Kirkcaldy, raised an action in the Sheriff Court of Fife as tutor and administrator-in-law of his daughter for the injury done to her. Damages were laid at £30.
The pursuer averred that the defender was riding “in a culpable and reckless manner and at a furious rate.” This the defender denied, and averred that the girl contributed to the accident by “culpably and recklessly” running against the defender's bicycle while he was riding at a reasonable rate.
Upon 1st October 1890 the Sheriff-Substitute ( Gillespie) allowed a proof, and he thus stated the facts in his judgment on 29th October 1890:—“Finds in fact that about half-past eight o'clock in the evening of Sunday 10th August last the defender was riding a bicycle at a smart pace along Oswald Road; that there were a good number of people walking in twos and threes along the road; that as the defender was approaching the point where Oswald Road is joined to Park Road on one side and Mitchelstone Loan on the other there were four women or girls walking abreast in front of the defender, who sounded his bell, and they had just time to get out of the way, three of them stepping on to the footpath on the left hand, when the defender and his bicycle ran past; that almost immediately after, the pursuer's daughter Janet Foster, a child of five years old, was crossing Oswald Road from Park Road; that in consequence of the women above mentioned obstructing the view the defender did not see the child so soon as he probably would otherwise have done; that when he saw the child he endeavoured to stop and applied the brake, but that it was too late, and that the bicycle collided with the child who was knocked over, her right leg broken, and her face cut, the defender having also been thrown off and somewhat injured; that in the circumstances above mentioned the defender was riding too fast, particularly on approaching the opening of side roads from which persons might be crossing; and that he was thus to blame for the accident: Finds him liable in damages and solatium, which assesses at sixteen pounds: Finds him also liable in expenses,” &c.
Upon 24th November 1890 the Sheriff ( Mackay) recalled the Sheriff-Substitute's interlocutor.
Authorities cited— Fraser v. The Edinburgh Street Tramway Company, December 2, 1882, 10 R. 264; Grant v. The Glasgow Dairy Company, December 1, 1881, 9 R. 182; Martin v. Ward, June 15, 1887, 14 R. 814; Clark v. Petrie, 6 R. 1076; Williams v. Richards, 3 C. & K. 81 (crossings).
The pursuer appealed.
At advising—
Page: 637↓
The next question is, whether we are to attribute the accident wholly to the fault of the defender? Now, I have no doubt in my mind that the defender was in fault in not having his machine under such control that he could have pulled up and so avoided the accident. I do not mean to say that a bicyclist will necessarily be found liable in damages because when he is riding along the street of a town a little child dashes out into the street in front of the bicycle and gets itself injured. What I mean is, that when a bicyclist is riding along, and his view becomes obstructed, so that he cannot see what may be in front of him, he ought either to get off altogether or to go at much less speed than the defender in this case seems to have been doing. I can see no fault upon the child's part; she was only six years old, and it is always difficult to impute contributory negligence to a child of that age. But it is certain that if the group of people on the street obscured the view of the bicyclist, it equally obscured the view of the child, so that it could not see the approaching bicycle, and the child had no reason to anticipate that a cyclist would suddenly scatter the people before him and come past a corner at a fast pace.
As regards the damages, I would not be disposed to interfere with those awarded by the Sheriff-Substitute except in an extreme case. It is my view that he has dealt with them in a very reasonable manner.
The Court recalled the Sheriff's judgment and affirmed the judgment of the Sheriff-Substitute, with the findings in law and in fact stated therein.
Counsel for the Appellant— M'Clure. Agent— Charles T. Cox, W.S.
Counsel for the Respondent— Stevenson. Agent— W. Ritchie Rodger, S.S.C.