Scottish Court of Session Decisions

In this action, which was raised in the Sheriff Court at Aberdeen, the widow and children of William Silver sued the Great North of Scotland Railway Company for damages on account of the death of the said William Silver, who was a foreman wayman in the defenders' employment.

The tenor of the pursuers' averments was as follows—On the morning of January 23, 1893, William Silver was employed in seeing that a section of the defenders' railway was clear. He was examining the up-line,

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and according to the usual and proper practice was walking down the said up-line, when he was overtaken and run over by a brake-down engine and van which was travelling down that line. The accident would not have happened but for the defective system and rules of the defenders' company. The despatch of the break-down engine was unnecessary, and would have been known to be so but for the defective means of telegraphic communication on the defenders' line. The proper and usual precautions for the safety of surfacemen, prescribed by the regulations of other companies, were not enforced by the defenders' regulations. The accident was also due to the negligence of certain of the head officials and local officials of the defenders' company.

The pursuers appealed to the First Division for jury trial, and thereafter lodged a specification in which, inter alia, they craved diligence for the recovery of—1. and 2. The rules and regulations of the defenders. 3. The rules and regulations of the Caledonian, North British, and Glasgow and South-Western Railway Companies. 4. “All written communication passing between the defenders' station-master and other officials at Buxburn station on the one hand, and the defenders' train and passenger superintendent, locomotive superintendent, inspector of permanent way, and other officials at Aberdeen, or any one or more of them, on the other hand, upon 23rd, 24th, and 25th January 1893, having reference to the break-down at Buxburn, the clearing of the line, the despatch of the break-down engine, the protection of the foreman wayman, and the death of Willian Silver; and also all books kept by or on behalf of any of said parties containing records of messages and orders, written or telephonic, passing between them or any of them, of said dates, with reference to said matters. 5. All communications passing between the defenders' train and passenger superintendent at Aberdeen, or anyone on his behalf, and (1) the defenders' locomotive superintendent, or anyone on his behalf; (2) the defenders' inspector of permanent way, or anyone on his behalf; and also between the defenders' said locomotive superintendent and inspector of permanent way, or anyone on behalf of either of them. 6. The written instructions by the defenders' train and passenger superintendent to the driver of the breakdown engine” and “the reports of his journey made by the driver and by the defenders' locomotive superintendent to their official superiors.” 7. The report by the stationmaster at Buxburn with reference to the breakdown, and all books kept by the stationmaster at Buxburn. “8. The report by the defenders' stationmaster or other official in charge at Woodside to his official superior in the defenders' service with reference to the death of the said William Silver upon 23rd January 1893.” 9. The defenders' report to the Board of Trade. 10. The principal plan of defenders' line of railway between Kittybrewster and a point 500 yards north of Buxburn.

The defenders expressed their willingness to produce their own rules and regulations, but quoad ultra objected. They argued—Article 3 should not be granted, because what other companies did or required to do in different circumstances was no evidence against the defenders, and in any case should be proved by parole. This was a diligence to recover the evidence of skilled witnesses. Articles 4–9 were objectionable, because they asked for the defenders' confidential communications, and a report to a public department. The proper way to prove the facts was by parole. These reports and communications could not be evidence, and could only be desired for purposes of precognition or cross-examination. It was not the proper function of a diligence to give possession of writings for such a purpose— Livingstone v. Dinwoodie, June 28, 1860, 22 D. 1333. Diligence to recover the report of a stationmaster of an accident made at the time had been refused by Lord Low in the unreported case of Macfarlane v. Great North of Scotland Railway Company. There was no trace of such an application having ever been successful. As to article 10, the pursuer should make his own plan.

The pursuers referred to Tannett, Walker & Company v. Hannay & Sons, July 18, 1873, 11 Maeph. 931.

At advising—