Scottish Court of Session Decisions

Peter Nimmo, confectioner, Glasgow, was the proprietor of an enclosed and private yard in Eaglesham Street, Glasgow. This yard was situated at the back of a tenement of houses in Eaglesham Street, and communicated with that street by a covered pend 8 1 2 feet to 10 feet wide and 40 yards long, with a gate at the street end. This gate was kept closed. Nimmo's vans were loaded and the horses yoked in this yard, and it was the practice after this had been done either for some-one other than the driver to open the gate, or for the driver himself to do so, and immediately thereafter lead out the horse.

On 3rd February 1897 a pony was yoked and the van loaded in the yard. The pony and van were standing about 30 feet from the entrance to the pend. The pony was a quiet animal without vice, and had been purchased by Nimmo on 30th January. The driver, M'Millan, after yoking the pony and loading the van, with the assistance of Hynes, one of Mr Nimmo's workers, went and opened the pend gate. He then returned and passed behind the pony and cart to get his coat, which was hanging at the end of the workshop door about 3 or 4 yards from the rear of the van. While he was doing so the pony went off at a trot toward the street, quickening its pace as it went through the pend. The driver rushed after it, but was unable to pass the cart in the pend and get to the pony's head as the space was too narrow. After leaving the pend the pony turned into Paisley Road by Eaglesham Street and ran into a horse and van belonging to George Milne & Company, bakers, Glasgow, which were standing at a shop door in Paisley Road. The shaft of the van pierced the off shoulder of the horse and seriously injured it.

Messrs George Milne & Company thereafter raised an action of damages for £40, 2s. against Nimmo on account of the injury received by their horse.

They pleaded—“(1) The pursuers' horse having been injured through the negligence of the defender or his servants, or others for whom he is responsible, the defender is liable to the pursuers in damages in respect of said injuries.”

The defender pleaded—“(1) The action is irrelevant. (2) The pursuers' horse not having been injured through the fault or negligence of the defender, or the fault or negligence of anyone for whom he is responsible, the defender is entitled to be assoilzied, with expenses.”

After hearing proof the Sheriff Substitute ( Guthrie) on 13th December 1897 pronounced the following interlocutor “Finds that on 3rd February last, while the pursuers' horse and van were standing at a shop door in Paisley Road, Glasgow, the defender's pony and van ran into the horse, the shaft piercing its off shoulder, and seriously injuring it: Finds that the defender's pony had been yoked in the defender's yard, and the van loaded; that the driver opened the door enclosing the pend which leads from the yard into Eaglesham Street, which is about 70 feet distant, and, coming back, went to the workshop, a few yards behind the van, to fetch his coat: Finds that while the driver was just behind the van on his return the pony went off at a trot, quickened its pace as it came to the pend, and turning into Paisley Road by Eaglesham Street ran against the pursuers' horse, as aforesaid: Finds that the pony had been but a few days in the defender's possession, and that it ought not to have been left unattended while the gate at the pend mouth was open; Finds the defender liable in damages, assesses the same at the sum of £26 sterling, for which decerns against the defender in pursuers' favour, with interest as craved.

Note.—“This is a very narrow case. There are many occasions, as has often been remarked, on which a horse may be left unattended for a short space without making the owner liable in the event of its bolting. But each case must be judged upon its own circumstances. Here there was perhaps the minimum of negligence, if the evidence of the witnesses, who are all in the defender's employment, be taken as perfectly accurate. It seems that on previous occasions the gate was usually, if not always, opened by another other than the driver, but if it was opened by him, he had always been ready to start at once, so that after opening the gate he was always between the pony and the gate. On the day of the accident he had forgotten his coat, and had to pass the standing pony and go some yards further to get at it. The witness Hynes was close behind the van, and it would have been prudent to ask him to go to the pony's head while he was absent. This he did not do, and the pony moved on, as I suppose he had been accustomed to do on the previous occasions when it had left the defender's court-yard, and not finding the usual hand on the reins had soon run off. I cannot hold the defender's driver in fault for not overtaking and getting hold of the reins, although I think that might have been done by an active and clever lad, but I think the caution of a man of ordinary prudence would have sent Hynes to the pony's head as soon as the road to the street was unguarded. I think so because the pony, though a docile animal, was still imperfectly known to the defender's people, and because the place was still new to it. Thus, as I said before, the case is a difficult and narrow one.”

The defender appealed to the Sheriff ( Berry), who on 6th April 1898 adhered to the interlocutor appealed against.

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Note.—“The decisions show that the question of fault or no fault in cases like the present is one that is apt to present itself in different lights to different judges. If there is fault in this case it is certainly of the minutest kind, and I have doubted much whether I ought not to hold that no fault has been established. Still to some minds it may seem that there was a semblance of fault in the driver opening, and leaving open, the pend door with the pony harnessed ready to start out of the pend with no-one at its head, while he went back to the workshop to fetch his coat. In that possible view of the case I think, although with much hesitation, that I should not interfere with the Sheriff-Substitute's judgment. The open pend door may be regarded as having offered an invitation to the pony to start off as it did; and in allowing that invitation to be presented to it I am not sure that there was not a certain amount of negligence.”

The defender appealed, and argued— There were no circumstances here disclosing fault. The character of the horse was good. Could it be said that negligence had been proved because the carter went behind the cart for a short distance? The case came within the principle laid down in Shaw v. Croall & Sons, July 1, 1885, 12 R. 1186, in which case the cabman went 10 feet away from his horse and was yet found not to have committed an act of negligence. The case of M'Ewen v. Cuthill, November 16, 1897, 25 R. 57, was distinguished from the present, because in that case the horse was a few yards from a railway line, and the driver went out of sight of his horse and went into a back shop. The present case was also ruled by Smith v. John Wallace & Co., March 11, 1898, 35 S.L.R. 583.

Argued for pursuers—There were two acts of negligence on the part of the driver proved—(1) Opening the gate before being ready to start, and (2) going so far behind the van that if the pony started off he was unable to get to its head. The gate was always kept shut except when the vans were going in or out, so that opening the gate was almost an invitation to the pony to start off. The pony did not bolt at once, it started off slowly, so that it could have been easily stopped if the driver had been within range. The ordinary and usual precautions had been neglected, and the defender was responsible for the damage caused thereby.