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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v. Magistrates of Edinburgh [1891] ScotLR 28_637 (19 May 1891)
URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0637.html
Cite as: [1891] SLR 28_637, [1891] ScotLR 28_637
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SCOTTISH_SLR_Court_of_Session
Page: 637↓
Court of Session Inner House Second Division.
[
v.
Facts:
In an action against the Magistrates of Edinburgh, where a pursuer averred that he had sustained injuries through a street being insufficiently lighted, and the defenders, while admitting the accident took place as alleged, denied liability and referred to the Edinburgh Municipal and Police Act 1879 for its terms, the Lord Ordinary approved an issue for trial by jury.
The Inner House, while admitting the case might suitably have been tried without a jury, refused to interfere with the discretion exercised by the Lord Ordinary.
John Smith, M.D., Brycehall, Kirkcaldy, brought an action of reparation against the Lord Provost, Magistrates, and Council of the City of Edinburgh, for injuries sustained by him through tripping over a low protruding wall in an unfinished road off Comely Bank Road and being spiked upon the railings.
He averred that the place where the accident occurred was within the burgh, and subject to the jurisdiction and administration of the magistrates, who had undertaken the jurisdiction and administration of said street, and levied and collected rates and taxes from the proprietors and tenants in the usual way; that it was insufficiently lighted, and that the accident was due to the fault of the defenders.
The defenders admitted that the accident happened as the pursuer averred, but denied liability therefor. They explained that the street in question was a private one, and referred to the terms of the Edinburgh Municipal and Police Act 1879 (42 and 43 Vict. c. 132) in support of their position.
The Lord Ordinary ( Kincairney) appointed the case to be tried by a jury and approved of the issue proposed.
The defenders reclaimed, and argued that the case should be tried without a jury, as there were virtually no facts in dispute, and nice questions might arise as to the interpretation of the Act referred to. The Inner House, in the analogous case of Harris v. Magistrates of Leith, March 11, 1881, 8 R. 613, had appointed a proof, and the recent somewhat similar case of Prentices v. Assets Company Limited, February 21, 1890, tried by the same Lord Ordinary as here and a jury had resulted in a new trial being allowed.
At advising—
Page: 638↓
The Court adhered.
Counsel for the Pursuer and Respondent— Dewar. Agent— William White, S.S.C.
Counsel for the Defenders and Reclaimers— Dickson. Agent— W. White Millar, S.S.C.