Scottish Court of Session Decisions

This was an action at the instance of Mrs Mary Keleher or Glancy against the Glasgow and South-Western Railway Company, in which the pursuer concluded for payment of £500 as damages for injuries sustained by her through the alleged fault of the defenders or of those for whom they were responsible.

The pursuer averred, inter alia—“(Cond. 2) On or about 9th February 1897, and about two o'clock in the afternoon, the pursuer was on the east side of King Street, Glasgow, in company with Miss Christina Morton, 193 Waddell Street, Glasgow. The pursuer and her companion made to cross from the east side to the west side of King Street, and they had almost got across when they were suddenly knocked down and injured by a runaway horse which was yoked to a lorry. (Cond. 3) The said accident was due to the fault of the defenders or those for whom they are responsible. The said horse and lorry were immediately before the accident approaching at a walking pace the railway bridge which crosses King Street, a short distance from the point at which the pursuer was knocked down, when in consequence of the loud and prolonged whistling of an engine belonging to the defenders, and in charge of their servants, the horse took fright and bolted. The said engine stood on the railway bridge aforesaid, and the driver, or other servant of the defenders in charge of it, culpably caused the engine to emit a prolonged and piercing whistle, which startled the horse and caused it to bolt. The horse having thus taken fright, dashed down the street at a high rate of speed, and ran into the pursuer and her companion, knocking them down and seriously injuring them. The said horse was entirely beyond the control of its driver, and it came on the pursuer and her companion so suddenly that it was impossible for them to get out of its way. (Cond. 4) In whistling in the manner aforesaid, the engine-driver, or other servant of the defenders in charge of the engine, was guilty of gross fault and recklessness. The whistling began some time before the horse bolted, and its prolonged and piercing nature caused the horse to bolt. The engine-driver, or other servant of the defenders in charge of the engine, caused the engine to whistle before the pursuer and her friend left the east side of King Street. The whistle continued while they were crossing, and was so piercing as to render conversation impossible. The said whistle continued without intermission during the time the accident happened, and while the pursuer and her companion were being lifted and carried down the street to a place of safety. A passer-by went to the other side of the street to obtain water for the pursuer and her companion, and the whistling continued until the water was brought. Altogether the whistling continued without intermission for about five minutes. Whistling in the manner and for the length of time above specified was quite unnecessary, and the defenders and their servants were in fault in causing or permitting same. There is a code of short signal whistles by which engine-drivers give notice of their approach, and draw the attention of signalmen to it, and in no circumstances is it necessary for an engine-driver in the performance of his duty to use the whistle for a prolonged time. A copy of the instructions issued by the defenders to their servants in the matter of whistling is produced herewith and referred to. Had the whistling been in terms of said instructions no accident would have occurred. In consequence of the culpable conduct of the defenders or their servants, as above condescended on, the horse bolted as aforesaid, and the pursuer was so injured. On account of the whistling the pursuer was unable to hear the approach of the horse, which was a quiet animal eight years old, and thoroughly trained to ordinary railway whistling. Other horses in King Street at the time of the accident were startled by the piercing and continuous whistling, and became temporarily unmanageable.”

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

The instructions referred to by the pursuer in article 4 of the condescendence were entitled “Whistling at St Enoch and Clyde Junction,” and stated that unnecessary whistling on the part of the engine-drivers had been noticed at St Enoch, and gave certain directions as to how this was to be abated.

On 9th November 1897 the Lord Ordinary ( Kincairney) issued the following interlocutor:—“The Lord Ordinary having heard counsel for the pursuer on the adjustment of issues, sustains the first plea-in-law for the defenders: Therefore assoilzies the defenders from the conclusions of the action, and decerns: Finds the defenders entitled to expenses,” &c.

Opinion.—“I am of opinion that the pursuer's averments are insufficient, and that the Railway Company are entitled to absolvitor. It is averred that the pursuer was knocked down by a horse which had bolted, and that it was startled and caused to bolt by the loud and prolonged whistling of the defenders' engine. It is not averred that the defenders were not entitled to cause their engines to whistle at the place in question, or even that the whistle which occasioned the accident was causeless and wrongful. The contrary must be assumed, and accordingly it is not said that the mere emission of the whistle caused any injury. It is the piercing quality of the whistle and its long continuance that are complained of. Now, it is certain that the whistling of engines is one of the incidents which necessarily accompany the

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operations for which the company have statutory authority, and I think it must be and is left in the discretion of the Railway Company to regulate the loudness and quality of the whistling. If the pursuer had said that the whistling was louder than was required to serve its particular purpose, that might have been something; but that is not said, but only that the whistling was too loud. I do not think that averment enough.

“The chief complaint, however, is of the continuance of the whistling. Now, when a complaint is about one of the ordinary incidents of railway traffic, I think that the complainer's averments must be distinct and specific. It is not enough to say that the servant of the Railway Company was at fault—that the whistling, which exhypothesi began lawfully, continued too long. I think it was necessary to say that it was continued after the occasion which justified it at first had ceased, or at least to say how prolonged it was before the accident happened. The pursuer knew that, for it was in the knowledge of the man who was driving the horse and lorry. She says, indeed, that it continued for five minutes; but that was in part after the accident. For anything that appears it may have been only a minute before the accident, and if that had been said I think no issue would have been adjusted to try whether that was too long, so as to involve the fault of the engineman. I am of opinion that the averments are too indefinite to be sent to trial.”

The pursuer reclaimed, and argued—No doubt there was a presumption that whistling by an engine-driver was necessary, but circumstances had been sufficiently averred here to show, if proved, that the whistling which took place on the occasion in question was unnecessary. If these averments were irrelevant, then it was impossible in practice for a pursuer in any case to have an action for injuries resulting from unnecessary and excessive whistling. A lawful act might be so done that it became unlawful by reason of its being done without due regard to the safety of the public — Manchester South Junction Railway Company v. Fullarton (1863) 14 C.B. (N.S.) 54. There, no doubt, the allegation was that the act was done at an improper place, whereas here it was that the act was done in an improper manner. This did not constitute a valid distinction, and the cases were analogous.

Argued for the defenders—The pursuer complained (1) that the whistling was piercing, and (2) that it was unnecessarily prolonged. All railway whistling was necessarily and properly piercing, and as regards undue prolongation it appeared from the details given by the pursuer that when the horse ran away the whistling had not been unduly protracted. It must necessarily be conceded that the whistling was lawful to begin with, and if it appeared that the horse was startled by whistling which was at that moment perfectly lawful its subsequent prolongation was irrelevant. It was necessary for the safety of the public that there should be a considerable amount of whistling, and if all that a pursuer could aver was that the engine-driver somewhat exceeded the strict necessities of the case, that was not a relevant averment, because in the interests of the public it was necessary that he should have a certain discretion. To make such an action relevant circumstances must be averred showing conclusively that the whistling was excessive and unnecessary. This had not been done here. In the case of the Manchester South Junction Railway Company v. Fullarton, cit., the engine-driver was blowing off steam where he ought not to have done so at all. Here it could not be contended that it was illegal to whistle at the place in question. No such action as the present had ever been brought before.

At advising—