Scottish Court of Session Decisions

This was an action at the instance of Mrs Lilian Morrison or Shearer, widow, residing at Townhead, Auchterarder, against John Butter Malcolm, Esq. of Castlemains, and residing at Auchterarder Castle, Auchterarder, in which the pursuer concluded for payment of the sum of £150 sterling as damages for personal injuries.

The pursuer averred—(Cond. 1) … “The defender is proprietor of two dwelling-houses with garden ground in front, which lie some 20 yards or thereby south-east of the pursuer's dwelling-house. (Cond. 2) About 3 feet or thereby from the south-east corner of the defender's said garden ground there is a public well, from which the pursuer and other inhabitants of the Town-head of Auchterarder obtain their supply of water. (Cond. 3) The defender recently and wrongfully placed or caused to be placed a stepping-stone in front of his said property. The stone protrudes fully a foot beyond defender's garden on to the public footpath between the entrance from the street to the pursuer's dwelling-house and the said public well, and, particularly at night, constitutes a dangerous obstruction to the public in the use of their said footpath. … (Cond.4) After darkon or about the

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evening of Saturday, 25th December 1897, the pursuer had occasion to go to the said well for water, and while doing so she stumbled against the said stone and fell violently upon the ground. The pursuer exercised due and proper care in going to the well. There was no light to show the stone, and her accident was entirely due to the fault of the defender in placing the said dangerous obstruction on a public footpath…. (Cond. 6) The injuries sustained by the pursuer were the direct result of the defender's fault in placing an obstruction of the nature condescended upon on the public footpath. The defender knew, or ought to have known, that by doing so he was causing danger to foot-passengers, but in disregard of his duty in the matter he placed or caused to be placed the stone as aforesaid, with the result that the pursuer was seriously injured thereby. Another person has been recently injured by falling over the said stepping-stone.”

The defender pleaded, inter alia—“(1) No relevant case.”

The pursuer proposed the following issue for the trial of the cause by jury:—“Whether on or about Saturday 25th December 1897, and on the footpath in front of the defender's property in Townhead, Auchterarder, the pursuer was injured in her person through the fault of the defender, to the loss, injury, and damage of the pursuer.”

On 7th June 1898 the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“The Lord Ordinary having heard counsel for the parties on the adjustment of issues, Sustains the first plea-in-law for the defender: Therefore dismisses the action, and decerns,” &c.

Opinion.—“The question is, whether the defender is liable in damages for having placed in front of his property a stepping-stone which projects on the pavement? It is to be observed that the pursuer resides in the immediate neighbourhood of the defender's property, and I think I am entitled to assume that she must have been well aware of the existence of this stepping-stone and its position. The defender avers that the pursuer passed the stone daily, and the pursuer is content with a general denial. Further, although the pursuer avers that the stone was recently placed there, she gives no specific date, and as the defender avers that the step has been there for a year, which is not specifically denied, I think I am entitled to assume that the stone had been there for a considerable time, and that the pursuer was well aware of it. The question is, then, whether such a thing as a stepping-stone placed on the pavement can be held in these circumstances to be a dangerous obstruction? There was no illegality in placing it there, unless it caused danger, and I am of opinion that a stepping-stone is not of the nature of a dangerous obstruction. I decide this case on the footing that there is no relevant averment of dangerous obstruction. A mere statement that this stepping-stone was a dangerous obstruction is not enough. The record must disclose what was the nature of the danger. There is not here a relevant averment of fault or anything done wrongfully. If it had been averred by the pursuer that the road was under the charge of the Commissioners of Police, it might have been said that the defender did a wrong in placing his stepping-stone there without their leave; but then it was placed on his own property according to the pursuer's statement. ‘Wrongful’ may mean illegal or disregardful of danger. But that takes one back simply to the question whether the putting of a stepping-stone on a pavement be an illegal and dangerous thing? One cannot help knowing that it is common enough to have such stepping-stones projecting on pavements, and seeing that pursuer lived in the immediate neighbourhood, I cannot see where the danger was to her. If it was so dark that she could not have seen where it was, she required to be exceedingly careful, but if it was not so dark but that she might have seen the stone which she knew about, she ought to have avoided it. In these circumstances this case cannot go on, for I think that even if all the averments of the pursuer were proved, the pursuer is bound to lose. I therefore dismiss the action with ex penses.”

The pursuer reclaimed.

Counsel for the pursuer was proceeding to argue that the pursuer's averments were relevant, when he was stopped by the Court.

Argued for the defender—A man was entitled to build a step like this'on the pavement in front of his property, and it was matter of common knowledge that this was constantly done. At anyrate, the commissioners of a burgh might allow a proprietor to place such a step in front of his property, and it was not alleged that they had made any objection here. At most such a step could only be a source of danger at night, and then the danger was really due to the want of light, for which in this case the defender was not responsible. The pursuer must have known that the step was there, and if she tripped over it, that was plainly due to her own carelessness.