Scottish Court of Session Decisions

This was an action at the instance of Mrs Jessie Russell, widow of the late John Russell, ironstone worker, Williamson Place, South Queensferry, against Mr A. Macknight, advocate, Edinburgh, concluding for payment of £1000 as damages for the death of her husband.

John Russell was the tenant of one of a number of dwelling-houses at Williamson Place which were owned by the defender. On the night of the 6th October 1894 he had been going upstairs, and in the darkness had fallen down to the bottom of the stair, thereby sustaining injuries in consequence of which he died two days afterwards.

The pursuer averred—“(Cond. 2) The steps of the stair were stone, and consisted of one steep flight, measuring about 20 feet from top to bottom, and about 4 feet wide. There was no hand-rail on either side of the stair, and there was no gas or other kind of light to illumine the said staircase when it became dark. At the top of the stair the wooden flooring of the landing projected over the top step, and there was a point or knot of the wood that projected prominently over the edge of that step. (Cond. 4) The fall which resulted in the said John Russell's death was occasioned by the defender's culpable and reckless neglect to have the stair referred to fitted with a hand-rail on either side of the staircase, and also by his culpably neglecting

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to have the staircase lighted by the usual necessary and artificial light for the ordinary safety of the tenants at night. If there had been a handrail in the place, the said deceased could have caught hold thereof and prevented or at least could have checked his fall; and if there had been adequate artificial light in the stair at the time, he could have seen the projecting and defective condition of the woodwork at the top so as to avoid the danger incident to it. The staircase was patently dangerous even in daylight, and especially after it became dark. The defender was personally well aware of the dangerous state of the stair without handrails and without artificial light. He visited the place on various occasions prior to the accident. He had also an agent who visited the place frequently, and he also was fully aware of the defective and dangerous state of the stair. Several tenants and their children, as defender or his factor knew, or had the means of knowing, had previously fallen down and sustained serious hurt in the same stair from the dangerous and defective state in which it was.

The defender averred that his factor visited the subjects frequently, and no complaints were ever made to him by the said John Russell, nor the pursuer, nor any other tenant, as to the stair being dangerous, nor were any suggestions ever made to fit up railings, and neither the defender nor his factor have knowledge of any tenants or their children having fallen down said stair.”

The pursuer pleaded—“(1) The defender being proprietor of the staircase in question, was and is legally bound to maintain it in a safe condition. (2) The said accident having been caused by the dangerous and defective condition of said staircase as condescended on, and this having been known to the defender or to his agent, for whom he is responsible, he is liable in reparation therefor.”

The cause was tried before Lord M'Laren and a jury on 20th July. The result of the evidence led was to show that the deceased had not, at the time of the accident, reached the landing where the knot of wood referred to in Cond. 2 was situated, and that there was a paraffin lamp for lighting the stair which it was the duty of the tenants to keep lighted. It was further proved that no complaint had been made by the deceased to the defender or his factor with regard to the absence of a hand-rail. A verdict was returned for the pursuer for £120.

The defender thereafter asked and obtained a rule on the pursuer to show cause why the verdict should not be set aside on the ground that it was contrary to evidence.

Argued for the pursuer—The verdict was one which could be reconciled with the evidence, and should not therefore be set aside. If it were patent to both landlord and tenant that there was a defect in not having a hand-rail on the stair, then there was no occasion for the tenant to complain to the landlord and warn him of its existence. Moreover, the defender should have given notice of this objection on record. The question as to the danger caused by the absence of a hand-rail had been left to the jury, no bill of exceptions had been taken by the defender, and accordingly there was no ground for disturbing the verdict.

Argued for the defender — No liability attached to the landlord in the absence of any complaint from the tenant. It was the duty of the latter to complain of a known danger, and, if the landlord did not remove it, to leave the premises— Webster v. Brown, May 12, 1892, 19 R. 765. This objection had been taken on record by the defender, and the Judge presiding at the trial had directed the jury that failing a warning having been given to the defender there was no liability. The verdict was directly contrary to this.

At advising—

Lord President—Now that this case has been explained to us, it really comes to a short point. The facts fail the pursuer in his attack on the staircase so far as the knot is concerned, because the pursuer's evidence showed that the knot in the stair had not been reached by the deceased when he fell. The alleged deficiency of light is out of the case in consequence of Mr Thomson's admission, and therefore the only point remaining is the absence of a railing on the stair.

I could understand that there might have been a case for the tenant if from complaints or remonstrances with the landlord against the continuance of the stair without a railing, it might have been matter of inference that the house was not accepted in its existing condition; but as the facts came out, it appeared that no complaint had ever been made on this head. The house was taken by the deceased himself without any railing on the stair, and there is no evidence that it was any worse at the date of the accident than when he entered into the contract.

Therefore when no evidence was offered on this head, I think that when the evidence was closed the case was one of which the jury could only dispose in one way.

Lord M'Laren, who tried the case, stated the point to the jury, and pointed out to them the condition of the evidence. It may be that his Lordship was entitled to go further and to give them a pointed direction on this head; but he placed the evidence before them, and it admitted of only one verdict—for the defender.

We are therefore in a position to judge that this verdict was contrary to the evidence.