Scottish Court of Session Decisions

This was an action brought in the Sheriff Court of Lanarkshire at Glasgow by James Caughie, 53 Dunn Street, Bridgeton, Glasgow, as tutor and administrator-in-law of his pupil son Robert Caughie, against John Robertson & Company, calico printers, Springfield Print Works, Dalmarnock, and James Orr & Company, bleachers, dyers, and cloth finishers, Summerfield Works, Dalmarnock. The pursuer prayed the Court “to grant a decree against the above-named defenders, ordaining them jointly and severally to pay to the pursuer, as tutor and administrator-in-law to his pupil son Robert Caughie, the sum of £200 with interest and expenses.

The pursuer averred, inter alia—“(Cond. 2) On or about 5th August 1896, the said Robert Caughie was walking upon the public footpath along the north or right bank of the river Clyde at Dalmarnock, when he fell into a heap of smouldering ashes, placed there by the said defenders, or both or either of them, and was severely burnt about the feet, legs, and right hand. (Cond. 3) The above-mentioned smouldering ashes are situated immediately alongside of the said public footpath which follows the bank of the Clyde at this point. An embankment has been formed immediately south of the said Summerfield Works by the tipping of ashes across this footpath which now goes over said embankment. Immediately along the edge of said footpath the defenders have been for some time in the habit of tipping ashes in a live condition. Those ashes, though dead to all appearance upon the surface, continue smouldering for some days underneath. Anyone following the line of the path and making a false step off the path would sink into the smouldering ashes and sustain injury.… (Cond. 4) In tipping said ashes, without having damped same, immediately alongside said public pathway, the defenders were acting

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negligently and wrongfully, and with reckless disregard for the safety of the public.”

Both defenders pleaded that the action was irrelevant.

After hearing parties in the debate roll, the Sheriff-Substitute ( Erskine Murray), by interlocutor dated 18th May 1897, before answer allowed a proof.

Both defenders appealed to the Sheriff ( Berry), who, by interlocutor dated 18th June 1897, adhered to the interlocutor appealed against, and remitted to the Sheriff-Substitute for further procedure.

The pursuer appealed to the Court of Session for jury trial, and proposed the following issue for the trial of the cause:—“Whether on or about the 5th day of August 1896, while upon or near the public footpath along the north or right bank of the river Clyde at Dalmarnock, and near the defenders' works, the pursuer's pupil son Robert Caughie was injured in his person through the fault of the defenders, or one or other and which of them, to the loss, injury, and damage of the pursuer's said son? Damages laid at £200.”

The defenders John Robertson & Company objected to the approval of the issue, and argued—Decree was sought against the defenders jointly and severally, whereas their liability was necessarily several. There was no case made here of joint wrong doing. The defenders were not said to have been associated in any way in making the heap of ashes. The acts complained of were quite independent. The action was therefore irrelevant in respect that the facts averred in the condescendence could not justify the decree craved in the petition. The issue proposed, in which the jury were asked whether the pursuer's son was injured “through the fault of the defenders, or one or other and which of them,” was not a proper form of issue to try a case in which decree was craved against two defenders jointly and severally.

Argued for the pursuer and appellant—The pursuer knew and averred that both the defenders deposited ashes at the place in question. The wrongful acts complained of might be separate, but the result of them was a joint wrong towards any member of the public who was injured by the existence and position of this heap, which, as averred, was wrongously placed where it was by both defenders. The pursuer did not and could not be expected to know which of the defenders deposited the ashes which injured the boy on the particular occasion in question.

There was no appearance for the defenders James Orr & Company.