Scottish Court of Session Decisions

The Glasgow Central Railway Act 1888 (51 and 52 Vict. c. 194) authorised the Caledonian Railway Company to construct an underground railway through Glasgow. Section 39 of the Act provided that the Railway Company might, for the purposes of constructing the railway, temporarily cross, alter, break open, stop up, or divert any streets, roads, lanes, and footpaths shown on the deposited plans and described in the deposited book of reference, and “may also during such construction from time to time break or open any such streets, roads, lanes, or footpaths when necessary for the protection or repair of any sewers, drains, or pipes under the same.” Section 40 provided that the company should restore the portions of the carriageway and footway of any street, road, lane, or footpath which might be from time to time stopped up by them for traffic for the purposes of the works within three months from the day upon which such portions should be stopped up, under a penalty not exceeding ten pounds for every day after the expiration of the said period. Section 41, sub-sec. ( c), provided that “In every case in which the company interfere with any street, road, lane, pavement, footpath, or tramway, the company shall, to the satisfaction of the Corporation” of Glasgow, “(1) Restore the street, road, lane, pavement, footpath, or tramway so interfered with by the said works or by subsidence occasioned thereby to the original level; (2) cause the street, road, lane, pavement, or footpath to be maintained and properly consolidated; (3) make good the paving and metalling of the street, road, lane, pavement, or footpath to be repaved or remetalled over their entire width.”

In the autumn of 1891 the Railway Company, in virtue of the powers conferred on them by the Act, began to make alterations in the gas and water pipes in the roadway and under the pavement opposite No. 721 Great Western Road, occupied by Messrs Chrystal, Bell, & Company, and owned by John Maxton. The Great Western Road is a public street vested by the Glasgow Police Act in the Corporation of Glasgow in their capacity of Board of Police. As the result of the Railway Company's operations the pavement got into an unsafe condition, the level of the flags being altered, and other damage was done to the property adjoining. In letters to the Railway Company, commencing in 1892 and continuing after the operations of the Railway Company had been completed, and in personal interviews with the Railway Company officials, Mr Maxton, who owned the line of tenements of shops and dwelling-houses forming Nos. 711 to 729 Great Western Road, repeatedly called upon the Railway Company to remedy the damage caused by their operations, and, inter alia to restore the pavement in question. The

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Railway Company did not admit the alleged injury to Mr Maxton's property, and declined to come to any agreement as to the amount of compensation to be paid therefor. In consequence thereof a question of disputed compensation arose between Mr Maxton and the Railway Company, which was referred to Mr Copland, civil engineer, Glasgow, as sole arbiter, conform to minute of reference dated 28th and 31st January 1895. In this minute of reference Mr Maxton proposed to insert a clause giving the arbiter power to deal with the damage done to the pavement in front of his property, but the Railway Company refused to do so, and informed Mr Maxton that he was not liable to restore the pavement if it had been injured by their operations, because in terms of their Act the question as to the restoration of the pavements was one between them and the Corporation of Glasgow. On 8th July 1895, after proof had been led before the arbiter, an agreement was entered into between Mr Maxton and the Railway Company for the settlement of the reference. Under that agreement the Railway Company agreed to restore the whole pavements, kerbs, and channel-way opposite 711 to 729 Great Western Road to the satisfaction of the Master of Works of Glasgow, and failing agreement with him to the satisfaction of Mr Copland.

On 28th November 1893 Mr John Whyte, the Glasgow Master of Works, served a notice on Mr Maxton requiring him to repair and level up the pavement in front of his property in Great Western Road. Correspondence on the subject passed between the parties, and on 16th January 1895 the Master of Works wrote Mr Maxton's agent that, after looking carefully into the clauses of the Act, he was of opinion that the Railway Company took the place of the proprietors, and were responsible to the Police Commissioners for any damage done by them so far as regards footpaths and roadways, and he therefore withdrew the notice. Mr Whyte thereafter called upon the Railway Company to put the pavement right, but the company refused to admit liability, and never restored it to the satisfaction of the Corporation.

On 2nd August 1895 Mrs Helen M'Intyre or Dunlop, while walking on the pavement opposite No. 721 Great Western Road, stumbled and fell in consequence of the irregularities in the surface of the pavement, and sprained her right ankle severely.

Thereafter she raised an action in the Sheriff Court at Glasgow against Mr Maxton for £250 damages, alleging that the accident was due to his fault in not fulfilling the obligations incumbent on him as proprietor of maintaining the pavement in a safe condition.

The defender pleaded, inter alia—“(1)The pavement in front of the tenement 721 Great Western Road, Glasgow, occupied by Chrystal, Bell, & Company, and others, having been interfered with by the Caledonian Railway Company in the construction of the railway from the Dalmarnock branch of the Caledonian Railway to Mary hill, under the provisions of the Glasgow Central Railway Act 18S8, and that company having undertaken by the said Act an obligation to restore the said pavement so interfered with by their works, or by subsidences caused thereby, to its original level, and wherever necessary to cause the said pavement to be repaved, and any defects in the pavement in front of said tenement at the date of the accident to the pursuer having been occasioned by the operations of the said company, the defender has no responsibility for the said defects, and the said Caledonian Railway Company are solely responsible therefor.”

A proof was heard which disclosed the facts above narrated.

On 6th December 1897 the Sheriff-Substitute (Strachan) pronounced the following interlocutor—“Finds that prior to Whitsunday 1896 the defender was proprietor of the tenements Nos. 711 to 729 Great Western Road, Glasgow, and the pavement in front thereof: Finds that the said pavement, and in particular the portion thereof in front of the premises occupied by Messrs Chrystal, Bell, & Company, was in the month of August 1895 in a dangerous and unsafe condition, the stones or flags thereof being of different levels, the discrepancies in some cases being from inches: Finds that on 2nd August 1895 the pursuer, while walking on the said pavement, tripped on an uneven part thereof, with the result that she stumbled and fell, spraining her right ankle severely: Finds that the said injury was sustained by the pursuer by and through the fault and negligence of the defender in failing to remove the present inequalities in the said pavement, and keep and maintain the same in a safe and proper condition: Therefore finds the defender liable in the loss and damage sustained by the pursuer in consequence of the said injury: Assesses the amount at £80, and decerns against the defender in favour of the pursuer for that amount.”

Note.—“It is clearly proved, and does not seem indeed to be disputed, that the pavement in question was in a dangerous and defective condition in the month of August 1895, and that this was the cause of the injury sustained by the pursuer.

The only question is, whether any fault or negligence has been established on the part of the defender in not having the defects repaired and the pavement put in a proper and safe condition. There can be no doubt that the alteration of the level of the stones or flags forming the pavement was caused by the operations of the Caledonian Railway Company in connection with the construction of the railway from their Dalmarnock Road Branch to Maryhill in the years 1892, 1893, and 1894, under the provisions of the Glasgow Central Railway Act 1888. By the 39th section of that Act the Railway Company were empowered to break open, stop, or divert any road, street, or any path shown on the deposited plans, to appropriate these during the construction

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of their works, and, if necessary, to break open the same for the protection or repair of sewers, drains, or pipes, and by the 40th section they were taken bound to restore any street or footpath interfered with to the satisfaction of the Corporation of Glasgow.

It must be conceded that from the time the pavement in question was injuriously affected by the operations of the company the defender did everything he could, short of adopting legal proceedings, to get the company to repair the defects and put the pavement in a safe condition, and also to induce the Corporation to compel them to do so. After a great deal of labour he succeeded in getting an obligation from the Railway Company to restore the pavement to its original condition, and induced the company and the Corporation to enter into a reference on the subject, which resulted in the necessary work being ultimately done. If the defender's duty was simply to endeavour to get the Railway Company and the Corporation to fulfil the obligations imposed on them by the Act of Parliament there can be no doubt that that duty was discharged by him.

But was this the only duty or obligation incumbent on the defender in connection with the matter? It was very strongly maintained by him that it was. The position taken up by him was and is that the injuries to the pavement having been caused not by him but in connection with the operations of the Railway Company, and they being under a statutory obligation to repair and restore the same, they are alone responsible for the defects which led to or caused the pursuer's injuries. The defender appears throughout to have been under a misapprehension in regard to this matter. He has entirely overlooked the duty and obligation imposed on himself by the common law.

There can be no doubt, I think, that as the proprietor of the pavement, it was the defender's duty to keep and maintain it in such a condition that it could be used in safety by the public. It is true that he did not himself cause the defects which rendered it dangerous, but that did not relieve him of the obligation to repair it and put it in a safe condition. Nor does it in any way affect his responsibility in this respect that the Railway Company were under a statutory obligation to restore the pavement to the condition in which it was prior to the operations. The case of Baillie v. Shearer's Factor, 23 R. 498,, is a clear authority on the point. In a question with the public, the defender, as the proprietor, was the person on whom the obligation primarily lay, and not with the Railway Company, as he seems to suppose, lie was the only one known to the public as being under any duty or responsibility in the matter. It must be kept in view, also, that the work requiring to be done in connection with the repair of the pavement was one which did not involve much time or expense. None of the stones or flags appear to have been broken or injured. All that required to be done was to restore the levels in such a way as to remove the inequalities, and that is a work which could have been done by the defender as well as by the Railway Company. Why, then, did he not do so, in place of wasting so much time in futile negotiations with the Railway Company? His duty was clearly to have called on the Railway Company to restore the pavement, and if they failed to do so within a reasonable time, to have the necessary work done at their expense. In place, however, of following this course, he allowed the pavement to remain for at least two years in what he knew was a dangerous condition, and I cannot but hold that this was such fault or negligence on his part as renders him liable for the injuries sustained.

There were two reasons given by the defender for not having himself repaired the pavement. In the first place, he says that the interference with the pavements in connection with the Railway Company's operations were so frequent that if he once restored it there was always a risk of his having to do so several times over, and in the second place, in the event of his interfering to put it right, and any subsidence or irregularity afterwards appearing, the Railway Company might attribute this to his operations. These reasons do not appear to me to be of such a character as would in any circumstances justify continued inaction on the part of the defender, but a conclusive answer to them is, that the operations of the Railway Company were all concluded, and the ground had finally settled down for at least a year before the accident was sustained by the pursuer.”

The defender appealed to the Sheriff (Berry), who on 28th February 1898 adhered.

The defender appealed, and argued—It was admitted that the defect in the pavement had been caused by the Railway Company's operations. There was no fault alleged against the defender for allowing the pavement to be lifted, and there could be no fault in his not restoring it, because under the Act of Parliament the Railway Company were taken bound to restore it to the satisfaction of the Corporation. This they had never done. By statute he had been divested of the power of controlling the condition of the pavement, and the duty of controlling it had been imposed on the Railway Company until they restored it to the satisfaction of the Corporation. He was the legal owner of the pavement, but his rights and duties were in abeyance at the date of the accident. There had been a statutory interference with his proprietary rights and a corresponding statutory limitation of his proprietary liabilities— M'Fee v. Police Commissioners of Broughty Ferry, May 16, 1890, 17 R. 764. The liability for the condition of the pavement continued on the Railway Company until they restored the pavement and maintained it till it had properly consolidated. The authorities showed that it is because the duty of maintenance is on the proprietor that he is liable for its condition. In Baillie v. Shearer's Judicial Factor, February 1, 1894, 21 R. 498, it was held that the street had not been taken

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over by the Board of Police, and there was thus a duty on the part of the proprietor. The Corporation by withdrawing their notice had acknowledged that the Railway Company and not the defender were responsible for the condition of the pavement, and this was the proper view.

Argued for pursuer—The defender as proprietor of the pavement was liable in a question with a member of the public for its getting into an unsafe condition. The case of Baillie's Trustees, supra, showed that this was the law even if the street is under the control of a public body. That case was in all material respects similar to this. The liability of the defender was not affected in any way by the statute. It did not relieve him of his duties and responsibilities under the common law.

At advising—