Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Dundee by James Symers Alexander, labourer, Dundee, against David Phillip, farmer, Balcalk, Tealing, near Dundee, in which the pursuer craved decree for £500 as damages for the death of his son aged six years.

The pursuer averred—“(Cond. 3) On or about 26th April 1898 the pursuer's said son James Symers Alexander junior was playing along with a number of other boys in Princes Street, Dundee. The defender was in charge of a horse and dog-cart or other carriage in said Princes Street, Dundee, on or about said 26th April 1898, and the defender in driving said horse and dog-cart or other carriage north-east-wards along said street, culpably, carelessly, and recklessly knocked down and ran over the pursuer's said son, who in consequence thereof sustained injuries from which he died on the following day. The defender knocked down and ran over the pursuer's said child in consequence of (1) his culpably, carelessly, and recklessly driving said horse and dog-cart or other carriage along said

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street; (2) his not keeping a proper look-out while he was driving said horse and dog-cart or other carriage along said street; and (3) his being drunk while in charge of said horse and dog-cart or other carriage, and therefore unable to take proper charge of said horse and dog-cart or other carriage.

The defender denied that he was driving recklessly and that he was drunk. He averred that he was driving at an ordinary trot, that he saw the children playing in the street, that he shouted to them, and that the children in the centre of the street went to the side leaving room for the defender to pass; that if the pursuer's son had stood still the trap would have passed him, but that just as it was about to pass the pursuer's son rushed or was pulled in front of the horse, and was knocked down; that it had now come to the defender's knowledge that the boys were playing with a rope stretched across the street, which the defender could not see on account of the darkness, that all the boys on the side of the street on which the pursuer's son was, with the exception of the pursuer's son, let go the rope, that the boys on the other side of the street continued pulling the rope, and that the pursuer's son was pulled in front of the trap just as the horse was upon the rope.

A proof was allowed.

The nature of the facts so far as material sufficiently appears from the interlocutors and notes of the Sheriff-Substitute and the Sheriff and the opinions of the Judges.

On 21st December 1898 the Sheriff-Substitute ( Campbell Smith) issued the following interlocutor:—“Finds that the defender is tenant of the farm of Balcalk, in the parish of Tealing, about 7 miles from Dundee, and that, as is usual with farmers in the neighbourhood, he from time to time visits Dundee for the purpose of business: Finds that on the 26th April 1898 he made one of his occasional business visits, having travelled to town by means of a dog-cart drawn by one horse, he acting as driver: Finds that he put up his horse and conveyance at the Eagle Inn stables, spent the day meeting friends, farmers, and fleshers, dined in a temperance restaurant, visited several public-houses, and according to his statement, neither supplemented nor contradicted but elaborately corroborated, drank at intervals not more than 1 3 4 glasses of whisky and a half glass of port: Finds that he left the Eagle Inn about a quarter past eight, and set off for home accompanied by the joiner of the district, to whom he had early in the day offered a lift on the way to Tealing: Finds that in passing along Princes Street, Dundee, his horse was going at a rapid pace, described by some witnesses as ‘galloping,’ by others as a ‘smart trot;’ that in Princes Street a band of boys, about fifteen in number, were, or shortly before had been, amusing themselves marching down the street holding on to a rope in front of them; that the pursuer's child, a boy aged six, was about the centre of the line and near the middle of the street; that the boys did not notice the approach of the defender's horse until it was close upon them; that the defender did not shout to them or try to stop the horse until it was too late; that after the boy's body had been passed over by the right wheel, the horse was pulled up with a jerk, with the result that the horse backed and the said wheel passed over the boy's body other two times: Finds that the effect of the wheel so passing was to burst one of the small intestines, set up peritonitis, and so caused the child's death within twenty-four hours: Finds that his death was due to the fault of the defender, and to the loss, injury, and damage of the pursuer: Assesses the damage at £85 sterling, for which decerns against defender: Finds the pursuer entitled to expenses.”

Note.—“The line of children drawn up or marching down the street towards the defender's trotting horse ought to have been seen by him forty or fifty yards away—not improbably twice that distance. The children of all large towns, through their carelessness and foolhardy adventurousness, are a torment to all drivers, more especially to the driver of every carriage that has the slightest semblance of superior respectability about it. But, nevertheless, I hold that, both by law and humanity, a driver is bound to take the utmost care that he do them no harm. The utmost care is sometimes insufficient to save a child that plunges blindly and rashly before a horse, even though its pace be a walking pace. The question raised by the defence is, Did the defender exercise the utmost care? I cannot come to the conclusion that he did. He saw the children in good time to reduce the speed of his horse, or to stop it. But he drove on expecting the children to ‘burst up.’ He had no right to trust to any such expectation. The chances turned out to be greatly in favour of the accuracy of his expectation, for all the children burst up and escaped but one—the youngest of them all I think; but I hold that with his eyes open he had no right to risk the obvious chance, however slight, of maiming or killing a human being. Why he did it I can only conjecture, but I feel certain that he did it. The most probable explanation, I fancy, is that he had either too much or too little drink. I do not think the horse would have been so destitute of sagacity as to have run down the children had the driver been drunk and incapable. I believe his market-day ‘halfs’ in public-houses had not affected him beyond elevating him into an excited foolhardy atmosphere. No doubt the police officers who saw him after the occurrence when he was taken into custody thought he was drunk—decidedly drunk—and the charge first recorded against him by the police was being drunk when in charge of a horse. I do not doubt what they say about his symptoms, but I believe these symptoms were largely due to excitement and vexation for what had happened rather than to alcohol. All his friends who saw him drinking that day say he was sober, and I believe he was at least as sober as most of

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them, and about as sober as any decent temperate farmer can be who is forced to transact business in public-houses on a market day. Nothing that I saw or heard leads me to doubt the defender's respectability, or to find that there has been proved against him any fault but the one. His manner, so far as I saw, was that of an honest witness who believed all he said in the witness-box. There is one important point in his evidence in which he agreed with or adopted the evidence of an elder brother of the deceased boy and one of his companions in this unfortunate street amusement, to the effect that his little brother was knocked down by the step of the dog-cart before he was run over, and I find it necessary to say that this evidence I do not believe. I do believe the evidence of the first witnesses—three women who were not examined at the criminal trial, all eye-witnesses to the occurrence—who concur in saying that the boy was knocked down by the fore leg of the horse. Their evidence is confirmed by some witnesses for the defence in another point not proved at the criminal trial, this second point being that the wheel passed three times over the boy's body, due for two times, I do not doubt, to the state of flurry into which the defender was cast by the accident. The evidence of these three women is not subject to any doubt that I can think of. It is, however, indicated to be most probably true by the position of the boy's body at the time the wheel passed over about the middle of it. He was lying on his back with his head to the right hand pavement and his feet on the part of the street over which the horse had passed. That a blow from the dogcart step could have thrown him into that position in regard to the wheel is quite inconceivable. So far as I could see, the boys examined did not mean to say anything that was not true, but some of them were as unintelligent as boys engaged in such play might be expected to be, and the evidence of all of them bore traces of that confusion of observation and of memory that affects nearlyevery spectator of a tragedy, more especially among the young.”

The defender appealed to the Sheriff ( Johnston), who on 20th March 1899 issued the following interlocutor:—“Recals the interlocutor appealed against: Finds (1) that on 26th April last the defender left the Eagle Inn, Dundee, between 8 and 8.30 P.M. in his own dogcart, accompanied by William Mortimer, joiner, Brighty, with the intention of returning home to Balcalk, Tealing: (2) That it is not proved that the defender, who was driving himself, was so much the worse of liquor as to be incapable of taking charge of a horse and vehicle: (3) That in driving up King Street and Princes Street the defender was not driving recklessly, but was driving at a reasonable and proper pace: (4) That in Princes Street the defender, about 8.30 P.M., came upon a large number of boys who were parading the street, having a rope stretched from side to side of the roadway, to which they were all holding on: (5) That when the defender's horse and dogcart were observed approaching, which was not until the horse was close upon them, the boys at one side let go the rope, and the boys at the other side gave it a jerk, with the result that the pursuer's son, James Alexander, aged six years, who was in the middle of the street, and did not let go the rope, was pulled in front of the horse, which knocked him over, and that the off-wheel of the dog-cart passed over his body injuring him internally so severely that he died on the following day; (6) that the rope was not visible to the defender, who in the darkness had no reason to suspect that the boys were doing otherwise than playing loose on the road before him; (7) that had the pursuer's son James not been pulled in by the rope, as above found, the defender's dog-cart would have passed clear of him, as it did of the other boys; (8) but that it is not proved that the defender took sufficient precaution to avoid accident: Therefore finds him in law liable for the death of the said James Alexander, and in solatium to the pursuer as his father: Assesses the same at £50: Decerns and ordains the defender to make payment to the pursuer of said sum of 50, with interest at the rate of 5 per cent. per annum from the date hereof: Finds the pursuer entitled to expenses,” &c.

Note,—“I have found the decision of this case not devoid of difficulty, and while I have came to the same conclusion as the Sheriff-Substitute, I have done so on different grounds.

I hold that the defender was at the time in question driving at a reasonable and proper pace.

That the boy James Alexander was pulled in front of the horse, which knocked him down by a jerk given by his companions to the rope of which he had hold.”

That the rope was invisible to the defender, and that he had no reason to anticipate that the boy would by any latent cause be dragged in front of his horse.

That but for the jerk of the rope the defender's horse and trap would have cleared the child.

That the defender was not in the state of drink represented by the police, though he had a glass or two of whisky during the afternoon.

In these circumstances I should have been inclined to assoilzie the defender, but that I think the authority of the cases Clerk v. Petrie, 6 R. 1076, and Auld v. M'Bey, 8 R. 495, require me to give judgment against him, inasmuch as if he had slackened his pace to allow time for the children to clear more completely out of his way, the accident, notwithstanding the rope, might have been avoided.

As the result of the accident is one which I am sure the defender has keenly felt, as his very proper conduct after he became aware of what had occurred evidences, I think it only due to him to explain my grounds of judgment more fully.

On 26th April 1898 the defender had driven into market from his farm, seven miles to the north-east of Dundee, in his

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dog-cart, and started for home from the Eagle Inn a little after eight o'clock. His history during the day is told by those who were in his company or in contact with him, hardly any of whom are cross-examined, and I am satisfied that, though he had partaken of refreshments three or four times during the afternoon and evening, he had done so temperately, and I do not think that there is any ground for saying that he was not capable of taking charge of his horse and conveyance. I think that the police account of his condition is greatly exaggerated and inconsistent with their action. For I cannot understand how a man who was so drunk as they declare the defender to have been at nine o'clock, and who had just run over a boy, should have been dismissed two or even three hours afterwards to drive himself home through the same streets, and, in the knowledge of the police, seven miles into the country.

With Mortimer, a neighbour from Tealing, the defender started to drive home via Panmure Street, King Street, Princes Street, Albert Street, and so on to Arbroath Road. From King Street on this route is all collar work, and I find no reliable evidence that the defender was driving at anything but an ordinary trot. I discard entirely the evidence of the first three witnesses. Neighbours who have not been examined in a criminal trial, and who are brought up in a subsequent civil case arising out of the same circumstances, are seldom very reliable witnesses, and these three give such an incredible statement that I think their whole evidence worthless. They say in one breath that defender was galloping up the street, and in the next that, having knocked down and run over the child, he pulled up so sharp—one of them makes it 12 to 18 inches—that his horse backed the wheels over the child, and then came forward over him a third time. The rest of the evidence satisfies me that the defender was going at a reasonable and proper pace, and that his wheel only once passed over the boy.

While defender was driving up the street, a parcel of boys, variously estimated, but probably fifteen or sixteen in number, were parading the roadway with a rope stretched from side to side, which those at the pavement side were hauling tight, while others, including the deceased James Alexander, aged six years, were holding on to the middle. At 8·30 of an April evening, I think it reasonable to believe that this rope was invisible to the defender, as it was to others, and that consequently he did not know what the children were doing, or appreciate the consequent danger they were in of being run over.

What actually did happen was that when the defender's vehicle was heard or seen—which from the intentness of their play was not till it was close on them—the boys in the middle of the street scattered more or less, while those at one end let go the rope, which those at the other end pulled, with the result that the deceased, who was too young too look after himself, and did not let go, was pulled in front of the horse, knocked down by its knees, and was consequently run over, and received the internal injuries of which he died. Had he let go the rope and stood still even, he would not have been touched.

Such proceedings on the part of children are traps for even the wariest of travellers, and it is somewhat astounding that such a game could have been permitted to go on in a main thoroughfare evidently for some time among children of six years old and upwards without either by standers or police interfering for their protection. The instant the accident happens there is a crowd ready to shout and run after the driver who has had the misfortune to run over a child, and before he has gone a 100 yards he is in the hands of a police inspector, a constable, and two detectives. But nothing is done either by passers-by or by police to stop in time the dangerous performance, and I confess I blame the passers-by and bystanders much more than the police, whose difficulties in this matter in Dundee I fully appreciate. Accordingly, I should have been inclined to hold that the child was thrown under his wheels by a cause which he did not and could not anticipate, the defender was not civilly liable, and he has already been acquitted from any criminal charge.

But the one person on whom the law lays any responsibility for children let loose on a street is a driver, and he is bound to show that he could not by possibility have avoided an accident. I do not think that the defender has discharged that onus. He and his companion both say that he shouted, but though I believe them, I think that it is clear that his shout was not attended to, and that he drove on too much in the faith that the children would scatter before he came up to them. Though the immediate cause of the accident was latent, I cannot say that if the defender had exercised more caution and less faith, the regrettable consequence of that latent cause might not have been avoided, and I am therefore constrained to find him liable for the boy's death, but I think that £50 is in the circumstances an adequate reward of solatium.”

The defender appealed, and argued—The defender was only liable for fault. No fault had been found against him. He could not have done any more than he did. His horse was under control. He was driving in the middle of the street. He was quite sober. He was going at a moderate pace. He drew up at once, The cause of the accident was that the child was dragged in front of the horse by the rope which the defender did not and could not see, and in a way which no one could have foreseen. Taking the Sheriff's first seven findings in fact as correct, which the defender was quite content to do, there was no ground for holding him liable. The defender had taken sufficient precautions to avoid accident. He was not bound to prove that he could not possibly have avoided an accident.

Argued for the pursuer—It was proved that the defender was drunk. He saw the children 30 yards off. He did nothing till he was within 10 or 15 yards off them, when he

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shouted. The children paid no attention. He went on without reducing the pace, trusting to the children breaking up. He should have pulled up when he saw that the children paid no attention to his shout; whenever he saw the children all across the street he ought to have got his horse to such a pace that he could stop at once. Now, if he was only going at a smart trot, he could not have had his horse sufficiently under control to stop at once. This was not a case of a child rushing suddenly out into the street. The child here was out in the street, and did not get out of the defender's way in time. It might be conceded that even if the defender was drunk and driving too fast, he would not be liable if it was proved that the child was pulled in front of the horse by the rope. But this was not proved; indeed, it was proved that it was not so. The cause of the accident here was that the defender did not take reasonable precautions to ensure the safety of the children, as he was bound to do. Authority referred to— Auld v. M'Bey, February 17, 1881, 8 R. 495.