Scottish Court of Session Decisions

James Duthie, Aberdeen, raised an action in the Sheriff Court at Aberdeen against the Caledonian Railway Company and the North British Railway Company, in which he prayed the Court “to ordain the defenders, jointly and severally, or severally, to pay to the pursuer the sum of £2000 sterling, or, alternatively, to ordain the defenders, the said Caledonian Railway Company, to pay to the pursuer the sum of £156 sterling with the legal interest thereon from the date of the decree to follow thereon till payment.”

The pursuer while performing his work as a platelayer in the employment of the Caledonian Railway Company at a siding belonging to the company in the Joint Station, Aberdeen, was seriously injured by being run down by a goods train belonging to the North British Railway Company. This train was being backed over this portion of the Caledonian Railway line by reason of the North British Railway Company having running powers over it. The train while being backed into the station had a goods van in front with no one riding in it, the brake van in which was the guard being next the engine.

As against his own employers, the Caledonian Railway Company, the pursuer maintained (1) that they were liable at common law on the following grounds: ( a) By rule 347 of the company's rules issued to employees it is provided with reference to the work of platelayers—“In busy yards the foreman ganger or leading man must at his discretion appoint look-out men, placed at such a distance as circumstances may require,” and they had failed to see that this rule was properly carried out. ( b) By rule 253a of the company's rules it is provided—“Where authorised by the special instructions of the general superintendent, waggons are run on the main line without a brake van in the rear, the man provided with the necessary signals must in all cases ride in the last waggon,” and the company had failed to see that the North British Railway Company's officials while using their line carried this rule into effect. (2) In any event they were liable under the Employers Liability Act for the fault of the pursuer's ganger William Duthie, who was working at the time of the accident and had thus failed to keep a proper look-out in terms of rule 347.

As against the North British Railway Company the pursuer maintained that they were liable at common law because ( a) those in charge of the train had neglected rule 253a of the Caledonian Railway Company while passing over the latter company's line, or in any event had neglected a necessary precaution in not having a man in the end waggon of the train to keep a look-out in front; and ( b) even if it was found that a man in the end waggon was unnecessary, no sufficient look-out had been kept on the engine.

After a proof the Sheriff—Substitute ( Robertson) on 24th July 1897 pronounced the following interlocutor:—“Finds (1) that on 10th June last pursuer was in the employment of the Caledonian Railway as a platelayer, and was engaged with a gang under the superintendence of William Duthie, a foreman or ganger of platelayers, working on the line within the confines of the Joint Station, Aberdeen; (2) That the spot where pursuer was working was a very busy place, where trains were constantly passing and repassing, and shunting going on both on the line where pursuer was working and on adjacent lines; (3) That the part of the line where pursuer was working belonged to the Caledonian Railway Company, but that the North British Railway Company have running powers over it, and are bound to obey the rules and regulations of the Caledonian Railway for the guidance of the traffic; (4) That on the day in question, about 4 p.m., a North British goods train was being backed into the North British goods yard, pushed by an engine; that the end or front waggon was a goods van; and that the brake van, in which was the guard, was next to the engine, and that there was no one riding on the last or front waggon or van; (5) That at the same time a Caledonian train was being backed into the Caledonian goods yard on an adjoining line

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of rail; (6) That the gang in which pursuer was working consisted at the time of three men (including pursuer) and the foreman; that there was no outlook man; and the foreman was not looking out, but was taking the place of a workman who had left off work that afternoon; (7) That pursuer was working between the rails, and witness Paterson, who was along with him, was standing outside the rails and stooping towards the rails; while at a distance of 16 or 17 yards from them the foreman Duthie was outside the rails picking under the rail, while witness Hay was between the rails; (8) That the North British train was not proved to have been going too fast, but in point of fact the four platelayers did not observe its approach, nor did the men on the train notice the platelayers in front of them, though the line at the point was quite straight; (9) That the North British train struck and knocked down pursuer, and injured him so as to necessitate the amputation of both feet and his left hand above the wrist—Paterson also being knocked down but not seriously injured; (10) That according to rule 347 of the Caledonian rules, in busy yards the foreman ganger or leading man must, at his discretion, appoint look-out men, placed at such a distance as circumstances require, but that, as stated, the foreman Duthie on this occasion had no look-out man; (11) That in accordance with a sound construction of rule 253a of said rules, a man provided with the necessary signals should have been on the last, or, as it was at the moment of the accident, the leading waggon of the North British train, and that this would have been a reasonable and proper precaution in the circumstances: (12) Finds that at the time of the accident Duthie, the foreman of the gang, was a person who had superintendence entrusted to him in the sense of the Employers Liability Act 1880: (13) Finds that pursuer's wages were at the rate of 20s. per week: Finds in above circumstances, under reference to annexed note, that the accident by which pursuer was injured was contributed to by fault on the part of both defenders or their servants, and that both are liable in damages: But finds, as regards the Caledonian Railway Company, that they are liable only under the Employers Liability Act of 1880, in respect the fault, so far as they were concerned, was fault on the part of William Duthie, the foreman: Assesses the damages, so far as the Caledonian Railway are concerned, at £156 sterling, and as against the North British Railway Company at £250; for which sums decerns against the said defenders respectively, with interest, as concluded for; Finds defenders jointly and severally liable in expenses.”

Both defenders appealed to the Sheriff ( Crawford), who on 20th January 1898 pronounced the following interlocutor:— “Recals the interlocutor appealed against: Finds in terms of the Sheriff-Substitute's findings, 1 to 10 inclusive: Finds (11) that at the time of the accident Duthie, the foreman of the gang, was a person who had superintendence entrusted to him in the sense of the Employers Liability Act of 1880; (12) That it was the duty of the Caledonian Railway Company, notwithstanding their appointment of Duthie, to see that the foregoing rule was regularly observed, and that they neglected to do so, and thereby contributed to the accident; (13) That it was a necessary precaution to have a man on the end waggon of the train to keep a lookout in front; that there was none; that the absence of a look-out man contributed to the accident, and was due to the negligence of both and each of the defenders: (14) Finds that the pursuer's wages were at the rate of 20s. per week: Therefore finds that both defenders are liable to the pursuer in damages at common law, and assesses the damages against each defender at £250, for which sum decerns against each defender, with interest, as concluded for: Finds that it is unnecessary to dispose of the conclusions of the summons so far as they are founded on the Employers Liability Act: Finds the defenders jointly and severally liable in additional expenses.”

The defenders appealed to the Court of Session.

The Caledonian Railway Company admitted that they were liable under the Employers Liability Act, but argued that they were not liable at common law. (1) Under Rule 347 of their rules the ganger was bound to keep a good lookout. The ganger in the present case was a thoroughly competent man. The accident had arisen through his negligence in not doing his duty, but for that negligence the employers were not liable at common law— Wilson v. Merry & Cuninghame, May 29, 1868, 6 Macph. (H.L.) 84, opinion of Lord Chancellor Chelmsford, p. 89. (2) Under rule 253a of the Caledonian Railway Company's rules a man should have been in the end waggon of the North British Railway train while passing over the line. If this rule had been observed, or if reasonable outlook had been kept by the men on the train, they would have seen the platelayers and the accident would not have occurred. But it was preposterous to argue that the Caledonian Railway Company were liable for the other company's negligence.

Argued for the North British Railway Company—They were not liable. Rule 253a did not apply to the circumstances of this case. The rule referred to trains being pulled not pushed, the object for having a man on the rear waggon being to let the signalman know that it was the last waggon. It also applied only to the main line, not to a siding like the present. When the signal was lowered in the Caledonian Railway signal box the North British Railway train got an invitation to enter the yard, and those in charge of the train were entitled to assume that the line was clear.

Argued for pursuer—Both the defenders were liable at common law, the Caledonian Railway Company for not seeing that its rules were observed and a proper look-out kept, the North British Railway Company

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for not taking the necessary precaution of having a look-out man on the end waggon. The North British Railway Company said that they were relieved of all responsibility because their train was signalled to go in, but the dropping of the signal only meant that the line was clear of trains and did not relieve those in charge of the train coming in from keeping a proper look-out to avoid running down those at work upon the line.

At advising—