Scottish Court of Session Decisions

This was an action brought in the Sheriff Court of Lanarkshire at Glasgow by Mrs Sarah Boyd or Thomson, a widow, against the Lanarkshire & Dumbartonshire Railway Company, in which the pursuer sought decree for the sum of £500 as reparation for the death of her son.

The pursuer averred, inter alia, (Cond. 3) that the public court of the tenement at 80 Castlebank Street, Partick, was separated from the defenders' railway by a wall belonging to them; that this wall was about 4 feet 11 inches high on the side facing the public court, and about 25 feet in depth on the railway side, and that it was flat on the top and about 14 inches wide, and that it met another wall at right angles.

She further averred—“(Cond. 4) At the sharp angular corner of the said public court formed by the junction of the railway wall and the other wall, there is, or at least there was, at the date of the accident after mentioned, a heap of dirt of about 2 feet or thereby high, which had been left there by the defenders or their workmen. Easy access to the top of the railway wall could be had by this heap or by means of the lower wall in Anderson Street. (Cond. 5) The said railway wall was, on account of its broad flat top and the easy access to it, and the great depth on the railway side, dangerous to children. Explained that the defenders intended to protect the wall by a railing on the top, but they negligently left the wall in an incomplete and unsafe condition by failure on their part to place a railing or other obstruction along the top thereof. This was or ought to have been known to the defenders, but they failed to put a railing or other preventive obstruction on the top of it. The defenders failed to take ordinary and reasonable precautions to prevent young children from getting on to the top of the wall. (Cond. 6) On 9th August 1896 the pursuer's son Thomas Thomson, ten years of age, was playing in the said public court, and following the example of his playmate she got on to the flat top of said railway wall by the said heap of rubbish, and while walking along it stumbled and fell on to the railway, a depth of 25 feet. (Cond. 7) The boy was lifted up and carried to the Partick Police Office, and from there to the Western Infirmary, where he died. (Cond. 8) The said accident was due to the negligence of the defenders in leaving said railway wall in an incomplete and unsafe condition, and in not having a railing or some other obstruction on the top of said wall so as to prevent children from getting on to the top of same, and also through the negligence of defenders in having placed the heap of rubbish as aforesaid.”

The pursuer pleaded, inter alia—“(1) The pursuer's child having been killed through the fault and negligence of the defenders as condescended on, the pursuer is entitled to reparation from them.”

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

By interlocutor dated 9th February 1897 the Sheriff-Substitute (BALFOUR) allowed a proof before answer, adding the following note:—

Note.—“This is a case for proof. The accident is said to have arisen from a boy of ten falling from a wall on to the defenders' railway, the wall forming the boundary of the railway, and being about 5 feet high, and the railway line being 25 feet below it on one side. The wall is said to face a public court in which the boy was playing, and a heap of rubbish 2 feet high was laid in the court by the defenders' workmen, which formed a stepping-stone to the top of the wall. It is further said that the defenders neglected to erect a railing on the top of the wall, which they intended to do, for the protection of the public. The defence is that the court is not a public court, that the railway was properly fenced, that the boy was a trespasser, and that he did not get on to the top of the wall by the heap of rubbish.”

The defenders appealed to the Sheriff ( Berry), who, by interlocutor dated 15th April 1897, recalled the interlocutor appealed against, sustained the defenders' plea of irrelevancy, and dismissed the action, adding the following note:—

Note.—“I do not think that a relevant case is stated against the defenders. Setting aside any question as to the court being a public court or the boy being a trespasser, and assuming that he got on to the top of the wall by the aid of a heap of dirt said to have been laid or left in the corner of the court by the defenders or their workmen,

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we still have it that while the general height of the wall was 5 feet (or 4 feet 11 inches, as the pursuer puts it), there was, even where the heap of rubbish lay, a height of wall above it to the extent of 3 feet. The wall was a sufficient indication even to a young boy of ten years of age that he was not entitled to climb upon it, and I cannot think that the defenders are responsible for the consequences of his having done so. It is averred for the pursuer that the defenders intended to protect the wall by a railing on the top, but failed to do so. An averment of this intention seems to me to have no bearing on the question of their liability. The material point is, whether it was their duty to protect the wall against children climbing on it in some such way, and I am unable to say that it was. The case, I think, is governed by the principle applied in Kelly v. Merry & Cuninghame, 27 S.L.R. 410.”

The pursuer appealed to the Court of Session, and argued—The pursuer's averments set forth a relevant case of fault against the defenders in failing to take sufficient precautions to render this place safe for children as they were bound to do. It was their duty to make it impossible for a boy of ten to climb on to a wall in such a position. See Findlay v. Angus, January 14, 1887, 14 R. 312. Whether the defenders had taken sufficient precautions was a jury question, and the pursuer was entitled to an issue.

Counsel for the defenders were not called upon.