Scottish Court of Session Decisions

Mrs Sarah M'Clure or Nelson, 2 Rose Cottages, Claythorn, Crow Road, Skaterigg, brought an action in the Sheriff Court at Glasgow against the District Committee of the County Council of the Lower Ward of Lanark, qua Road Trustees, for £250 as reparation for injuries sustained by her through the fault of the defenders' servants engaged in cleaning the road opposite her house.

A proof was allowed, from which it appeared that on Monday and Tuesday of the third week in February 1890 the roadsmen—the defenders' servants—raked a large quantity of mud off the road in front of the pursuer's house, which they placed in heaps of about 2 feet long by 18 inches broad, and 8 inches to a foot in height, in close proximity to the pathway passing her house. The mud was left to solidify, and was removed on Friday following. The roadsmen in so acting followed their usual practice, their only instructions being to clear the roads and accumulate the mud in such a manner as to inconvenience the public as little as possible. There were no houses exactly opposite the pursuer's, nor was there any footpath on the other side of the road. The road was unlighted at night. On the Wednesday evening, which was very dark, the pursuer wishing to go to a shop on the other side of the Crow Road, in a slanting direction from her house, stepped off the pathway to cross the road, but as she did so her foot caught upon one of the heaps of mud, and she fell and broke her arm. Since the accident the roadsmen had placed the mud-heaps on the other side of the road.

The Sheriff-Substitute ( Birnie) found that the defenders, or those for whom they were responsible, were in fault in allowing the obstruction of the nature of the heap in question to remain in the position in which it was on the night in question, unlighted and unguarded; and that there had not been contributory negligence on the part of the pursuer; and decerned against the defenders for payment of £30 as a fair measure of damages.

“ Note.—The question of the duty of road trustees is very much one of circumstances. One thing is clear, that they are not justified in leaving on the public roads under their charge anything that may constitute an obstruction and endanger the public in using the road. In the case of Duncan v. Findlater, July 18, 1837, 15 S. 1304, which on that point was not reversed, the leaving of a heap of stones partly on the path and partly on the roadway, so that a vehicle was upset, was held to be a fault for which the trustees might be responsible (if they could be responsible at all). In Dargie v. The Magistrates of Forfar, March 10, 1855, 17 D. 730, an action founding on injuries said to be caused by a stone having been left by the defenders on a public street was held relevant. Persons who are in the position of road trustees, therefore, are liable for accidents arising from obstructions consisting of road materials, just as a private person is liable who empties a cart of coals on a road and leaves it there in the dark.

The question then arises, is a mud-heap, such as that over which pursuer fell, an obstruction? Now, mud-heaps only 2 or 3 inches high, like most of those in the Great Western Road, for instance, are so low that they practically form no obstruction, and even in the dark it can hardly be conceived that a person would trip on them. But the heap in question is sworn to as about a foot high, 2 feet long, and 18 inches wide. On the whole, the Sheriff-Substitute cannot doubt that such a mud-heap as that over which pursuer stumbled is more or less an obstruction. Two questions then arise—(1) Was it an obstruction which the defenders or their servants ought to have known was dangerous? and (2) Was it a necessary obstruction which the defenders could not help? As regards the first question, the danger of heaps of that size is mainly one of circumstances. In certain circumstances there may be practically no danger attendant on them at all. For instance, if laid out on that side of a country road on which there is no path, and where there are no houses in the vicinity, the risk of anyone ever stumbling over them is so remote that it may practically be disregarded. But where there are houses on the one side of the road the inhabitants may lawfully and naturally have frequent occasion to step off the pathway into the road in the vicinity of their own doors, and still more where there are houses on both sides it may be expected that their occupants may lawfully and frequently have occasion to cross the road. In such positions the defenders and their servants ought to anticipate and provide for such contingencies. And where the roads are unlighted the leaving of obstructions in such positions is clearly a fault. A heap of claggy and half consolidated mud a foot high is a very natural cause for a stumble. It is not every stumble that breaks an arm; had the pursuer fallen to the right instead of to the left, she would probably only have been dirtied instead of injured. But though an unusual accident, the pursuer's was one which might be anticipated sooner or later the more populous a neighbourhood grew. Again, it is argued that the defenders could not be expected to spend so much of the ratepayers' money as to have all the mud removed the same day that it is scraped together,

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and that therefore it was necessary to put and keep the heaps where they were. But this is no answer, for all that was required was to remove large mud-heaps in the vicinity of houses, or in such other positions where they might probably be in the track of passers-by so as to obstruct their progress and endanger their limbs, or never to lay them in such special positions at all. When mud-heaps are left over night they should not be left in positions where they may naturally be the cause of passengers tumbling over them in the dark.

As regards the question of contributory negligence, the Sheriff-Substitute can see none on the part of the pursuer. No doubt she was aware that the roadsmen were in the habit of leaving mud-heaps on her side of the road. She might therefore be bound to look out for them in crossing the road. But the evidence shows that the night was so dark that she could not possibly see them had she looked ever so carefully; her friend Mrs Livingstone coming to see her when she was injured ran against the paling in the dark and hurt herself. And there is no proof that she ever saw the individual mud-heap before so as to be able to localise it. In these circumstances no negligence on pursuer's part has been proved.”

The defenders appealed to the Sheriff ( Berry), who recalled the Sheriff-Substitute's interlocutor, found that fault had not been proved on the part of the defenders, and assoilzied them accordingly.

The pursuers appealed to the Second Division of the Court of Session, and argued—The Sheriff-Substitute had taken the correct view, and his judgment should be reverted to. The heap should not have been made so high or left lying so long in such a dark place. It might and should have been placed upon the other side of the road where there were no houses and no footpath. That there were no reason against this having been done was proved by the road trustees having done so since the accident. The Road Trustees were not entitled to cause unnecessary danger to the public, as this mud-heap undoubtedly was— Dargie, supra; Virtue v. Commissioners of Police of Alloa, December 12, 1873, 1 R. 285; Stephen v. Thurso Police Commissioners, March 3, 1876, 3 R. 535.

Argued for defenders—In the cases referred to, the obstructions had been placed on the road. The mud was there actually, but was being removed in the interest of the public in the usual way. It had to be allowed to lie for some time to solidify. It was a matter of discretion which side of the road the mud was raked to. The woman might have fallen over it when she got to the other side if it had been there. There had been the ordinary reasonable management observed here, and there had been no fault on anyone's part unless it were on the pursuer's, who had lived there for nine years and was well acquainted with the methods followed in the cleaning of this road.

At advising—