Scottish Court of Session Decisions

Adam M'Intosh, newsagent, Kirkcaldy, raised an action in the Sheriff Court at Kirkcaldy against the Commissioners of the burgh of Lochgelly for £100 damages for personal injuries sustained by him. He averred that on 2nd September 1896, while walking along a footpath within the burgh of Lochgelly after dark, his foot came in contact with a large flat stone opposite a shop door, in consequence of which he fell and struck his face against the stone and was thereby injured. He further averred—(Cond. 4) “The said footpath is under the charge and control of the defenders, and is looked after and attended to by their employees. They were bound to have it in a safe condition for foot-passengers both at common law and under statute, and in particular under the Burgh Police (Scotland) Act 1892, sections 128, 130, 141, and 142.” He also averred that the night was very dark, and that (Cond. 5) “Notwithstanding the dangerous condition of the footpath owing to the position of said stone, the defenders, who have charge of the lighting of the streets of the said burgh, took no steps to light the place in question, and did nothing which would disclose to a passenger the presence of the said stone, or in any way warn him of the dangerous condition of the place… . The defenders were bound, both at common law and under statute, and in particular under section 99 of the Burgh Police Act 1892, to have the place where the said accident happened lighted at the said hour, and their failure to do so was gross fault on their part.”

In answer to the pursuer's averments in Conds. 4 and 5, the defender denied that the footpath in question was looked after by their employees, and averred that the highway of which it formed part was vested in and maintained by the Kirkcaldy D strict Committee of the County Council of Fife, and that it had not been taken over by them under sections 141 and 142 of the Burgh Police Act 1892. They also denied that they were under any obligation to light the spot at which the accident happened, and explained that they had made provision for lighting the burgh in terms of the Burgh Police Act 1892, but that under the discretion which they were given by section 99 of that Act, the lamps in the burgh had not begun to be lighted for the season 1896–97 on the night of the accident.

The defenders pleaded that the case was irrelevant.

The Sheriff — Substitute ( Gillespie) allowed a proof before answer, and the pursuer appealed for jury trial.

Page: 51↓

Argued for the defenders—There was no averment of responsibility for the condition of the footpath having been incurred by the defenders under the statutes, nor was it averred that they were proprietors. In the absence of such averments the case was irrelevant either at common law ( Harris v. Magistrates of Leith, March 11, 1881, 8 R. 613) or under the statute ( Baillie v. Shearer's Judicial Factor, February 1, 1894, 21 R. 498). As to lighting, there should have been specific averments of want of lighting known to the commissioners and wrongfully neglected. The only question was as to the construction of statutes—General Police and Improvement (Scotland) Act 1862 (25 and 26 Vict. cap. 101); Roads and Streets in Police Burghs (Scotland) Act 1891 (54 and 55 Vict. cap. 32); Burgh Police (Scotland) Act 1892 (55 and 56 Vict, cap. 55), sections 141 and 142. Such a question should not be tried by a jury but by a judge. The case was of a trivial nature, and the inquiry was local; it should therefore be sent back to the Sheriff— Bethune v. Denham, March 20, 1886, 13 R. 882.

Argued for the pursuer—Responsibility for the condition of the footpath was sufficiently averred in Cond. 4. Section 128 of the Burgh Police (Scotland) Act 1892, made no distinction between carriageways and footpaths. Sections 141 and 142 merely provided methods of dealing with footpaths. Even assuming that the defenders were not responsible for the condition of the footpath, their duty to light it and their failure to do so were relevantly averred in Cond. 5. The question whether their discretion under section 99 of the Act of 1892 was rightly exercised was one for a jury. Triviality was no ground for sending a case to be tried by a judge instead of a jury.