Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Glasgow by Patrick Hanlon, residing at 47 Clyde Street, Newton, Cambuslang, against the Glasgow and South-Western Railway Company, in which the pursuer craved decree for £250 as damages for the death of his son, which

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he alleged was caused by the culpable conduct of one of the defenders' servants while acting in the scope of his employment.

The pursuer averred that on 27th August 1898, about 9#x00B7;15 p.m., his two sons Terrence and Michael, and a man named John Houston, were in St Enoch's Station intending to take the train to Paisley; that they proceeded to platform 3, and found the 9·5 p.m. train for Paisley still standing at that platform, and that the carriages in the rear portion of the train were unlighted and locked.

The pursuer further averred as follows:—“(Cond. 5) Failing to get entrance into these carriages, they proceeded along the platform. Houston was in front, and entered the first third-class compartment he came to that was open and lit. Immediately before he entered the said compartment the train had started. The two Hanlons were a short distance behind. Michael Hanlon was then prevented from entering by an official of the defenders. On seeing this, Terrence, who was behind his brother, did not attempt to enter, but remained on the platform. (Cond. 6) Thereupon a ticket collector, or another of the defenders' servants, seized hold of the said Terrence Hanlon by the collar of the coat, pushed him violently, and thus caused him to fall forward, and suddenly let go his hold. This caused Terrence Hanlon to fall between the platform and the train. (Cond. 7) The train passed over his legs. He was taken to the Royal Infirmary, and died from the effects of his injuries the following morning. (Cond. 8) The said accident happened through the fault and negligence of the said ticket collector or other servant of the company in culpably, carelessly, and unwarrantably, while acting in the scope of his employment, seizing hold of the said Terrence Hanlon, and causing him to fall between the train and platform.”

The defenders pleaded—“(1) The pursuer's statements are irrelevant.”

On 30th December 1898 the Sheriff-Substitute ( Strachan) issued the following interlocutor:—“Repels the first plea-in-law for the defender: Allows parties a proof of their averments, and appoints the case to be put to the diet roll of 13th January next.”

Note.—“The defenders maintain that the action is irrelevant, in respect it appears from the pursuer's own averments that the deceased Terrence Hanlon was killed while attempting, culpably and recklessly, to get into a train while in motion. I do not so read the pursuer's averments. On the contrary, it is assuredly stated that the deceased, who undoubtedly intended to get into the train, on seeing that Michael Hanlon was prevented by the officials from doing so, gave up the attempt, and was standing on the platform when he was seized by the company's officials and thrown down between the platform and the train. Whether the officials were justified in acting as they did, is entirely a question of circumstances, and cannot possibly be determined without a proof.”

The pursuer appealed for jury trial, and lodged the following issue for the trial of the cause:—“Whether, on or about the 27th day of August 1898, in St Enoch's Railway Station, in Glasgow, the pursuer's son, Terrence Hanlon, received injuries, from the effect of which he died, through the fault of the defenders, to the loss, injury, and damage of the pursuer? Damages laid at £250.”

The defenders objected to the relevancy of the pursuer's averments, and to the form of the proposed issue.

Argued for the defenders—(1) The pursuer's averments were irrelevant. A bare statement that the act complained of was done while acting in the scope of the servant's employment was not sufficient. The pursuer was bound to set forth facts and circumstances showing that the act in question was within the scope of the servant's employment. There was nothing averred here to indicate that the collector was acting in the course of his duty. Indeed, the pursuer's statements indicated the contrary. It was not alleged that the collector was endeavouring to prevent the deceased from entering the train, or doing anything else in pursuance of his duty as a servant of the Railway Company. According to the pursuer's account, what the ticket collector did was to commit an assault which was neither necessary for any legitimate purpose nor provoked. Such an act could not render the defenders liable in damages'— Wardrope v. Duke of Hamilton, June 24, 1876, 3 R. 876; Allen v. London and South-Western Railway Company, 1870, L.R., 6 Q.B. 65. (2) The issue should be in the form approved by the Court in the case of Lundie v. MacBrayne, July 20, 1894, 21 R. 1085. That form of issue was approved by the House of Lords in Pringle v. Bremner and Stirling, May 6, 1867, 5 Macph. (H.L.) 55, see p. 56. The attention of the jury should be drawn to the fact that it was necessary for the pursuer to prove that the defender's servant was acting within the scope of his employment.

Argued for the pursuer—(1) The pursuer's averments were relevant. The cases referred to by the defenders had no bearing on the present. The acts complained of in these cases were plainly not within the scope of the servant's authority. A master was liable even for the criminal acts of his servant if committed while acting within the scope of his authority— Dyer v. Munday [1895], 1 Q.B. 742. The liability of railway companies for such acts as the one complained of was well illustrated by the case of Bayley v. Manchester, Sheffield, and Lincolnshire Railway Company. 1873, L.R., 8 C.P. 148. (2) The issue was in the ordinary form used in actions founded on culpa. Lundie, cit., was a case of wrongous arrest.