Scottish Court of Session Decisions

Matthew Conlon, tramway driver, 50 Cavendish Street, Glasgow, raised an action for £200 damages against the Corporation of the City of Glasgow.

The pursuer averred—“(Cond. 2) On 5th October 1898 the pursuer, who at the time of the accident after mentioned was out of employment, was standing at or near the gateway of defenders' tramway stables at Pollokshaws waiting for employment, when without warning, and in a careless and reckless manner, a servant in defenders' employment drove a car past the spot where pursuer was standing, causing him to be jammed between the car and the pillar of the gateway, whereby pursuer was severely crushed about the chest and ribs, and has been rendered unfit for work.… Pursuer was not in defenders' employment at the time of the accident, and was standing where he had a right to be. Pursuer had left defenders' employment, and was paid off and discharged before said accident.”

The defenders averred, inter alia, “that it was a fellow driver of the pursuer who was driving the car between which and the gate the pursuer was at the time of the occurrence; and pleaded “(2) Collabo—ratcur

On 22nd November 1898 the Sheriff-Substitute ( Guthrie) allowed the pursuer a proof of his averment that he had been discharged from the defenders' service before the accident occurred, and to the defenders a conjunct probation.”

The proof brought out the following facts:—The pursuer was a “spare man. A “spare man” was one who at 7 a.m. came to the Tramway depôt of the Glasgow Corporation and reported his arrival. He then waited on till 9 a.m. on the chance of one of the regular drivers of the tramway cars not turning up, and his taking his place. If he waited on from 7 till 9 and got no job he received one shilling from the tramway department; if he got a job as driver he got a full day's pay, viz., 3s. 10d. If the spare man, after reporting himself at 7 o'clock, got a job elsewhere under some other person, he was entitled to take it, but if he left for any reason before 9 o'clock, he did not get one shilling from the Corporation Tramways Department. The Tramways

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Department kept a list of spare men, and if well behaved these spare men got on the permanent list as vacancies occurred on the regular staff. On the morning in question the pursuer had gone to the depot at a quarter to five and had obtained a job of driving a car to Gordon Street and back, returning to the depôt at 6·42. He earned 9d. for this journey, but this sum was not paid till October 12th. After his return he reported himself at 7 o'clock as a spare man, and was standing waiting to see whether he would get a job when the accident occurred.

On 6th December 1898 the Sheriff-Substitute ( Guthrie) pronounced the following interlocutor:—“Finds that at the time when the accident condescended on happened the pursuer was in the service of the defenders as a spare tramway car driver: Finds that it is alleged by the pursuer that the accident was caused by the fault of another driver in the defenders' tramway service: Therefore sustains the defenders' second plea-in-law, dismisses the petition, and decerns,” &c.

The pursuer appealed to the Sheriff ( Berry), but on 2nd February 1899 the latter adhered.

The pursuer reclaimed, and argued—He was not in the employment of the defenders at the time he was injured; he was waiting on in the chance of getting employment. There was no contract between him and the defenders that he was to remain till 9. He was entitled to leave before 9, and get employment elsewhere, and no penalty was imposed on him for leaving before 9. If he stayed on till 9 he got one shilling from the defenders, but they had no control over his movements. He could leave when he pleased.

Argued for the defenders—When the accident occurred the pursuer was a “spare man” in their employment. The criterion of employment was payment for doing something. In this case the pursuer's employment was waiting between 7 and 9 to see whether he would be required to take the place of a regular driver, and for this employment he received one shilling. He was thus employed earning one shilling from the defenders.