Scottish Court of Session Decisions

James Johnstone, labourer, 224 Garscube Road, Glasgow, raised an action in the Sheriff Court at Glasgow for £500 damages against James Stewart & Sons, house factors, Glasgow, as acting for the proprietor or proprietors of the plot of ground and gable walls situated between Garscube Road and Port Dundas Canal, formerly occupied by the Phoenix Foundry.

The pursuer averred:—“(Cond. 3) About June 1896 the buildings forming the Phoenix Foundry were demolished by the defenders, or those for whom they are responsible, with the exception of certain of the gable walls, which were left partly standing, to form the boundary walls of said plot of ground. The old gates of the foundry were also left. (Cond. 4) The gable walls thus partly demolished were negligently left by the defenders, or those for whom they are responsible, in a rough, unfinished condition, irregular in height, and without coping or dressing of any kind. (Cond. 5) The south-western boundary of said plot of ground consists of an irregular brick wall (being one of said partly-demolished gables). This wall ends at the gate leading into Sawfield Place, and is terminated with large blocks of sandstone, placed at right angles to each other alternately, in order to dovetail into a former gable at right angles to the said wall, which gable is now entirely demolished. (Cond. 6) Alternate pairs of the said blocks of sandstone were left projecting a very considerable proportion of their length beyond the face of the brick boundary wall, and formed an easy staircase over the wall into Sawfield Place. They have been constantly so used by the public going to Sawfield Place when the said gates were locked—since the demolition before mentioned. The operations of defenders, or those for whom they are responsible, caused the said wall to be left in a dangerous condition. (Cond. 7) No means were taken to secure the top projecting stones, which were deprived of much of their support by the removal of the bricks below them in the demolition of the wall formerly at right angles to the boundary wall, nor was the cement, which is old and in a crumbling condition, in any way renewed. (Cond. 8) After the demolition of the buildings thereon, the said plot of ground was let as a show-ground, and continues to be so let. (Cond. 9) The principal means of entrance to the show—ground from Garscube Road is the said gate at Sawfield Place. This gate stood open all day, and was shut and locked at irregular hours in the evening, irrespective of the number of people in the show-ground. When this gate was shut the recognised mode of exit from the grounds to Garscube Road was by means of the steps formed by the said projecting stones; said steps were an inducement and invitation for people inside to climb the wall to get out when the gates were shut. This mode of exit was in regular use, and was known by the defenders to be so. (Cond. 10) On the evening of Friday the 7th August 1896, between seven and eight o'clock, the pursuer's son William James Johnstone (otherwise James Johnstone), thirteen years of age, went into the show-ground by the Sawfield Place gate to see the shows. (Cond. 11) On returning with two companions about eight o'clock they found the gate shut, although there were still numbers of people in the grounds. (Cond. 12) The two companions then proceeded to go over the wall by the steps formed by the projecting corner stones. Pursuer's son was at this time standing at the foot of the wall. (Cond. 13) Before they reached the top, one of the top corner stones and a large quantity of rubble and cement suddenly fell on the pursuer's son and knocked him down, the stone breaking over and crushing one of his feet. (Cond. 14) As the result of said accident, the pursuer's son died in the Royal Infirmary upon 26th August 1896. (Cond. 15A) The accident was caused through the negligence on the part of the defenders, or those for whom they are responsible, in allowing said wall to remain in a dangerous condition as aforesaid; also negligently closing the gate (without first giving notice to the public inside to leave the ground), necessitating the public inside the ground climbing the wall to get out to Garscube Road. Had they left the wall after the demolition in a sufficient state of repair, or before closing the gates given notice to the people inside to leave the ground, the accident would not have occurred. (Cond. 15) The defenders, although they knew or ought to have known the dangerous condition of the wall, took no steps to have it made secure, or to give warning against persons using it as a means of exit from the show-grounds. (Cond. 16) The defenders, although they knew or ought to have known that boys were constantly playing on said wall and loosening the bricks and stones, took no efficient means to prevent them doing so. (Cond. 17) The defenders, although asked, refuse or at least delay to compensate the pursuer for the loss of his son.”

The pursuer pleaded—“(1) The pursuer's son having been killed through the fault or negligence of the defenders, or of those for whom they are responsible, the pursuer is entitled to reparation from the defenders.”

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

Page: 77↓

On 18th October 1897 the Sheriff-Substitute ( Balfour) pronounced the following; interlocutor:—“Allows the parties a proof of their averments.”

Note.—“I think this is a case which should go to proof. It is averred—(1st) That the wall in question has been constantly used as an access and exit to and from the vacant ground by the public when the gates were locked, and was known by the defenders to he so used; (2nd) that the wall was in a dangerous condition, and although the defenders knew this they took no steps to secure it or to warn persons against using it; (3rd) that on the night in question the pursuer's son and his two companions, who had been visiting the shows on the ground (for which the defenders had let the premises), found the gate shut, and the two companions proceeded to go over the wall, and brought down stones, &c., from the wall on the pursuer's son who was standing at the foot of the wall; and (4th) that the defenders closed the gate without giving notice to the public inside to leave the ground as they were bound to do. These alleged facts are a sufficient averment of fault on the part of the defenders.”

The pursuer having appealed to the Court of Session for jury trial, the defenders took advantage of the appeal to object to the relevancy of the case.