Scottish Court of Session Decisions

John Barton, van-driver, Glasgow, sued William Lucas, clerk to and as representing the Commissioners of the burgh of Kinning Park, and William John Graham, contractor, for payment of £500 damages for bodily injury sustained by him through falling over a heap of mud.

About 4 p.m. on the 24th December 1890 the pursuer was leading his horse and van along Shields Road, Kinning Park, Glasgow. There was a dense fog at the time, and the pursuer, to keep clear of other vehicles, was keeping near to the left side of the road. After proceeding a short distance up the road both horse and man stumbled over a heap of mud lying by the side of the road, and fell, the pursuer sustaining serious injury. He raised an action in the Sheriff Court of Lanarkshire, in the first place against the Police Commissioners, and on their inserting in their statement of facts an account of their contract with Graham, he raised a second action against the latter, the two actions being conjoined. The pursuer alleged that the accident had been caused by the culpable negligence of the Commissioners or the contractor.

Lucas pleaded—“(3) The accident being either a pure mishap, or being caused by the pursuer attempting to drive his horse and cart in the circumstances condescended on, and as he solely or materially contributed to his own injury, is not entitled to reparation from the defender.”

Graham pleaded—“(3) The danger through the fog being so great, the defender was justified in stopping the removal of the street sweepings. (4) The said accident having happened through no fault of the defender, he is entitled to absolvitor.”

A proof was led, and conflicting evidence was given as to the position and dimensions of the mud-heap. The effect of the evidence is sufficiently given in the findings of the Sheriff-Substitute, who on the 30th October 1891 assoilzied the defenders from the conclusions of the action.

Upon 30th October 1891 the Sheriff-Substitute ( Balfour) pronounced this interlocutor:—“Finds that the pursuer met with an accident on Shields Road on the afternoon of 24th December last by falling, along with his horse, at the west side of the road close to the paling; that the pursuer had come from his master's bakery in St James Street, and had proceeded across the bridge in Scotland Street, and had turned round the corner of the bridge along Shields Road to the extent of about fifteen yards when he and his horse fell; that the pursuer was leading the horse at the time on account of its being a very dark foggy afternoon, and he was keeping unusually close to the west paling in order to avoid traffic, and he and his horse slipped on some mud which was lying at the side of the road, and the pursuer sustained serious injuries; that the locality in question is under charge of the Kinning Park Commissioners, and they have a contract with the defender Graham for the removal of the dirt and rubbish in the streets; that according to the Police and Improvement (Scotland) Act, which regulates the Commissioners in the performance of their duties, they are bound to remove the dirt

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and rubbish from the streets at such convenient times as they shall consider proper, and the practice which has prevailed between them and their contractor with reference to Shields Road is that the Commissioners themselves, through their servants, sweep the dirt from the road into the west side, and they collect it in small heaps, and the contractor then removes the heaps: Finds that on the occasion in question Shields Road had been swept on the afternoon of 23rd December by a brush-machine, and the dirt was then in a very thin and watery condition: Finds that along the west side of Shields Road there is no footpath, and there are no lights, and that the foot traffic and lights are confined to the east side of the road: Finds that along the west side of the road a small siver or gutter has been created by the running of the water, and this is not quite on a level with the rest of the road, and the tendency of mud, when brushed to the side in a watery condition, is to run into that siver and not stand on a level with the road: Finds that on the morning of the accident, the Commissioners' surfaceman went to Shields Road with the view of clotting the mud out of the siver, and collecting it in heaps for removal by the contractor: Finds that on account of its watery condition the surfaceman was unable to collect it, but that it was coming in at his heels as fast as he was putting it out: Finds that after working at it for a short time the surfaceman, at half-past eight o'clock in the morning, had to stop work, on account of a dense fog which set in, and that the contractor's men were on their way that morning to remove the mud, but had to return to the stables on account of fog, and the mud was not removed that day: Finds that the extent of the mud has been greatly exaggerated by the pursuer's witnesses, and in particular, that the accumulation was not five feet wide and five feet long and eighteen inches high, and that it was not collected in heaps, but that it was one continuous line of mud about six inches deep, and about three feet broad, and three or four feet out from the paling: Finds that the accident was caused by the pursuer keeping too close to the paling on that very foggy afternoon, and by him and his horse slipping on the mud which had become somewhat hardened through the frost which had set in: Finds that, under the circumstances, the defenders were not to blame for the non-removal of the mud that afternoon, the accumulation having been of an ordinary, and not of a dangerous size, and they having been prevented by the fog from removing it: Finds that the pursuer knew the road well, and was in the daily habit of traversing it, and was aware that the mud of the street was swept into the west side: Therefore assoilzies the defenders from the conclusion of the action: Finds the pursuer liable to them in expenses, &c.

“ Note.—I am of opinion that the pursuer's witnesses have greatly exaggerated the extent of the mud which lay in the road. None of them saw the mud that day before the accident except Mrs Ferguson and Neil M'Neil, and the evidence of witnesses who only saw the mud on a very foggy afternoon, after it was knocked out of shape by a man and a horse falling on it, is to be received with caution. The evidence of Mrs Ferguson, who stumbled over the mud at four o'clock that afternoon, and who says that it was an an extra large heap of mud, 8 feet long and 4 feet broad, but who cannot state the height, can be explained by the fact that she was crossing the road from the church to the corner of the bridge, 15 yards fron the locus of the accident, and that at that part the collection of mud is greater than it is further north. George Haldane, the causeway-layer, says that the line of siver varies from about 5 or 6 feet down to about 3 feet, and that it is about 7 or 8 feet broad about the bridge; and it was at this broad part where Mrs Ferguson crossed. The evidence of Neil M'Neil, who passed along the road at ten o'clock in the morning, and who was carrying two cans of milk, and who says that he had to walk sideways through the heaps, as he could not lift the cans over them, must be taken in connection with the circumstance that he says that the man was working at the mud at the time making it into heaps; and then, on referring to this man's evidence we find that he was unable to collect the mud properly, and that he no sooner brushed the stuff away than it came back again, so that what M'Neil passed his cans over were not permanent heaps, but temporary watery heaps that went back to the level of the siver.

The evidence for the defenders, on the other hand, has satisfied me that the accumulation was one continuous line of soft mud 3 or 4 feet from the paling, which had not been collected into heaps, and which could neither be collected nor removed that day on account of the fog. That there was an extraordinary fog that day is clear from the evidence of Professor Grant, and from other evidence in the case, including the statement of the pursuer himself, who says that he could see one yard or one yard and a-half before him, and the evidence of his master, Mr Ebenezer Archibald, who says that his instructions to the pursuer and the others that day were that they must lead their horses to ensure safety, and he did not think that it was safe for a man to be driving a horse. According to the Act of Parliament the Commissioners are bound to remove the dirt at such convenient times as they shall consider proper, and I am of opinion that they observed this provision of the statute by making arrangements to collect the stuff in the evening, and to have it heaped and removed on the following morning, and that they were justified in stopping its removal during a dangerous fog, especially looking to the circumstance that the accumulation was not of a large or dangerous quantity in ordinary circumstances. If the accident had happened on the night of the 23rd, I do not see how the defenders could have been held liable for it.

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It cannot be expected that the sweepings of the streets are to be removed instantly—indeed from the watery condition they are often in they could not well be removed at once, and as these sweepings had been brushed to the side of the road on the evening of the 23rd, the contractor could not be expected to remove them that night. These sweepings were not the kind of obstruction on a street for which Commissioners in former cases have been held liable. In the case of Dargie, 17 D. 730, they were held liable for a large stone on the pavement. In Stephen's case, 3 R. 535, it was for the contents of an ashpit which had been laid in one heap upon the street; and in M'Fee's case, 17 R. 764, it was for a railway bridge which was too low to let a cab pass. In this case the ordinary sweepings of the road were drawn to the side where there was no foot traffic, and which the pursuer knew was used for collecting the mud. And these sweepings had not been heaped up or rendered dangerous.

As to the quality of the evidence for the defenders, it appears to me to be superior to the pursuer's. The witnesses are men who saw the state of the road before the accident, and who are accustomed to deal with the roads. The two Grahams saw Shields Road before the accident took place; and Haldane the causeway-layer, and M'Geoch the surfaceman, were the men who brushed the road that afternoon, and who tried to lump the mud next morning, and they found it too soft, and they could not see what they were doing on account of the fog. These men struck me as being reliable witnesses, and as giving accurate evidence.

I may add that the only witness who saw the accident besides the pursuer was Mrs M'Dougall, and from her evidence it would appear that the horse was restive on account of the fog, and that the pursuer was doing his very best to keep it back, the horse trotting and struggling against him; and I am of opinion that from the pursuer's anxiety to keep clear of the traffic in Shields Road he kept too close to the side, and he had enough to do with his restive horse, and he and the horse slipped in the mud, which had become somewhat hardened by the frost. The accident just points out the danger there was in going along a public road that afternoon, and it was this very danger which prevented the contractor's men working and caused the cessation of other traffic.”

The pursuer appealed to the First Division of the Court of Session, and argued—The Commissioners caused dangerous obstruction to be made, and failed to light it or protect it in any way. The fog made the obstruction all the more dangerous. Mud might and ought to have been removed simultaneously with its collection. They took no proper pains to protect the public, as they had a statutory obligation to do under the Police Act of 1862 as well as at common law. They were therefore liable. “Convenient” in sec. 132 of the Act meant suitable for the public safety and requirements of traffic. They might have anticipated the fog, and should have provided for the public safety. The contractor, on finding he could not remove the mud, should have given notice to the police of the dangerous state of the road. His contract should have been completed by 4 p.m. Police Act 1862 (25 and 26 Vict. c. 101), secs. 132, 137, 139, 235; Stephen v. Police Commissioners of Thurso, March 3, 1876, 3 R. 535; Davis v. Tharsis Sulphur Company, December 1, 1889, 27 S.L.R. 230; Clark v. Chambers, April 15, 1878, 3 QBD 327.

Argued for the Commissioners—The accident was due solely to the fog. It was the general custom, after sweeping the mud aside, to leave it for some time before collection. It was impossible to provide for a contingency such as the dense fog on the day of the accident. It was not necessary for the Commissioners to protect or place lights by the mud, which was not really more dangerous than the pavement. Arrangements had been made for its removal by the contractor, which were only hindered by the fog. No further duty lay on the Commissioners.

Argued for the contractor—Under the contract with the Commissioners the contractor was only bound to remove the mud when it had been collected in heaps. This had not been done, and his duty had not commenced at the time of the accident. He was not bound therefore to inform the police of his inability to remove the mud owing to the fog.

At advising—