Scottish Court of Session Decisions

This was an action by Mrs Jane Armstrong or Burns, widow of Michael Burns, labourer, Glasgow, against The Steel Company of Scotland, Limited, for £400 as damages for the death of her husband, which she alleged was caused by the fault of the defenders.

The defenders were proprietors of a large piece of vacant ground to the north of their Blochairn Iron Works in Glasgow, on which stood two cottages let by the defenders to some of their employees. The ground was surrounded by a high sleeper fence. In this fence was a large wooden gate the body of which was about fifteen feet long and seven feet high. It was moved on overhead pulleys. The ground being vacant, the defenders about two years before the date of the accident, caused the gate to be firmly fixed up. A wicket-gate at the side allowed the inhabitants of the cottages entrance to the piece of ground.

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About 26th January 1893 the defenders let one of the cottages to their foreman Henry Healy. On that day Healy removed his furniture into the cottage. To allow the lorry upon which the furniture was placed to approach the cottage, the gate, which had somehow had its fastenings removed, was pushed to one side by the pursuer's husband and Healy. After the furniture had been placed in the cottage and the lorry had come out again, the same persons tried to shut the gate, when it fell down and killed the pursuer's husband. The defenders were not aware that the gate had been unfastened.

The issue for the trial of the cause was whether the pursuer's husband was killed “through the fault of the defenders.”

The jury returned this verdict—“The jury unanimously find for the defender.”

The jury added this rider to their verdict as noted by the Judge presiding at the trial ( Lord Wellwood)—“The foreman added that he had been asked to state by the jury that while accepting unanimously the law as laid down by your Lordship, we do not think that a due measure of supervision and care over the gate in question had been exercised by the Steel Company.”

The verdict was entered for the defenders.

The pursuer applied for a rule to show cause why a new trial should not be granted, and argued—The verdict was contrary to the evidence, as shown by the rider the jury had appended to their verdict. It was admitted that the law laid down by the learned Judge presiding at the trial was right, but the jury had misunderstood it, and showed this by the rider. They thought that the law laid down meant that if the defenders had once fixed the gate no responsibility attached to them ever afterwards, and they indicated that the defenders had been guilty of negligence in not seeing the gate was kept fixed. The meaning of the verdict was that there was fault on the part of the defenders, or at least the verdict and the rider were so inconsistent that a new trial ought to be granted— Florence v. Mann, December 17, 1890, 18 R. 247.

At advising—