Scottish Court of Session Decisions

Mrs Agnes Logan or Hall, wife of and residing with James Hall, poulterer, 22 Roxburgh Street, Kelso, with consent and concurrence of her husband, raised in the Sheriff Court at Jedburgh an action of damages for £500 against Mrs Jane Humble or Hubner, 13 Strathearn Road, Edinburgh.

The pursuer averred—“(Cond. 2) In the month of September 1895, and for thirty years or thereby previous thereto, the said James Hall was one of the female defender's tenants in said property. He occupied a dwelling-house in one part of it, which is No. 22, and also a shop, which is No. 24, both Roxburgh Street, Kelso. There is internal communication between the said house and shop. The defender is the proprietrix of both places, and received the rents for them from the said James Hall. The entrance to the dwelling-house was by means of a lobby entering from the street

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(and a side door communicating with the shop), and a staircase leading from the lobby to the dwelling-house, which is on the second and third flats. The staircase was enclosed on both sides by the walls of the building. Those walls are of stone or brick and plaster, and were quite smooth to the touch. The steps of the stair were wood, and consisted of thirteen in number, measuring about 13 feet from top to bottom, and from 3 feet to 3 feet 4 inches wide. There was no hand-rail on either side of the stair. The wood which formed the steps of said stair was, when the injuries after received were sustained, discovered to be in a decayed, rotten, and ruinous condition. (Cond. 3) On or about the 28th September 1895, and between eight and nine o'clock in the evening, the pursuer was in the course of going down from her said husband's dwelling-house to his said shop. When she had reached the middle of the stair, and when on the sixth step thereof counting from the bottom, that step, owing to its decayed, rotten, and ruinous state, suddenly and without any warning broke or gave way, and having no handrail or other means of checking her descent, she violently went down 3 feet 6 inches or thereby into a cellar below. The pursuer was much hurt.… (Cond. 4) The ruinous state of the said stair, which resulted in the injuries sustained by the pursuer as aforesaid, was occasioned by the female defender's culpable and reckless neglect to have the stair referred to thoroughly repaired or entirely renewed. The staircase was in a defective and dangerous condition, and the defenders were personally well aware of the dangerous, dilapidated, and ruinous state of the stair. The said James Hall, the pursuer's husband, frequently complained to Mr Thomas David Crichton Smith, solicitor, Kelso, the defenders' factor at Kelso, to whom she entrusted the management of said property, and asked him to have the stair repaired or renewed, and specially did he do so in or about the month of August 1895, when Mr Robert Moodie Grieve, principal clerk to the said Mr Thomas David Crichton Smith, visited and inspected the said stair, and was then at least fully aware of the defective, ruinous, and dangerous state of the stair. The female defender entirely renewed the steps of said stair after the pursuer had received the serious injuries before condescended on. It was the female defender's duty to have the said stair in a safe condition for the use of the occupants of the premises, but she neglected this, with the present result. By her own culpable neglect, and that of her factor or agent, for whom she is responsible, the serious injuries to the pursuer took place.”

The pursuer pleaded, inter alia—“(1) The female defender being the owner of the stair and staircase in question, was and is legally bound to maintain it in a safe condition, and the pursuer's injuries having been caused through her failure to do so, she is liable in reparation as prayed for.”

The defender pleaded, inter alia—“(1) The pursuer's statements are irrelevant and insufficient in law to support the conclusions of the petition.”

On 8th March 1897 the Sheriff-Substitute ( Baillie) sustained the first plea-in-law for the defender and dismissed the action.

“Note.—The pursuer avers that she sustained serious injuries on 28th September 1895 through the breaking of a stair of the house in which she and her husband, the tenant thereof, were then living—a house in which, on the uncontradicted averment of the defender, the proprietrix, they had been living for over thirty years. She further avers that the stair was in a decayed, rotten, and ruinous condition, that her husband frequently, and in particular during the month of August 1895, complained to the defenders' factor, and that the accident occurred owing to the condition of this stair. My sole difficulty has been that the defender denies that any complaints were made as to the condition of the stair; but whether these complaints were made or not, I think it is clear from the pursuer's averments that for some time prior to the accident she was aware of the state of the stair, and that, knowing this, she and her husband chose to remain on in the occupation of the house. I am therefore of opinion that this case falls within the rule laid down in Webster v. Brown, 19 R. 765, and Shields v. Dalziel. February 2, 1897, 4 Scots Law Times 257, and that I must hold her averments irrelevant.”

The pursuer appealed to the Sheriff ( Vary Campbell), who on 22nd March 1897 sustained the appeal, recalled the interlocutor of the Sheriff-Substitute, and before answer allowed to both parties a proof of their averments.

Note.—“I do not think that I can refuse an inquiry in this case. It does not appear to me that the case is ruled by the decisions referred to in the note of the Sheriff-Substitute. The pursuer is not the tenant of the premises, and the defect alleged is an emerging defect, of which it is averred by the pursuer that notice was given to the landlord. I think the true basis of the case consists in distinct proof of culpa as against the landlord, and the defender has on record various pleas as to the knowledge or contributory negligence of the pursuer, which may yet become available upon the true state of facts being ascertained.”

The defender appealed, and argued—The judgment of the Sheriff-Substitute was sound and ought to be reverted to. The case was ruled by Webster v. Brown, May 12, 1892, 19 R. 765. In both cases the pursuer had continued to occupy the house in the face of a known danger. The only distinction that the Sheriff drew between Webster v. Brown and the present case was that in the former the pursuer was the tenant, while in the present case the pursuer was the tenant's wife. But the wife must either be considered as identical with her husband, the tenant, in which event there was no distinction between the two cases, or she must be considered to be a stranger, in which case her remedy was against the tenant and not against the proprietor.

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Counsel for the pursuer were not called on.