Scottish Court of Session Decisions

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Cite as: [1899] SLR 37_6, [1899] ScotLR 37_6

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

Tuesday, October 17. 1899.

37 SLR 6

Wood

v.

North British Railway Company.

( Ante, February 14, 1899, 36 S.L.R. 407.)

Subject_1Trespass
Subject_2Railway
Subject_3Brevi manu
Subject_4Removal by Forceof Cabman from Railway Station.

Process — Proof — Jury Trial — Direction to Jury — Discretion of Judge to Give Direction Asked.
Facts:

Where a cabman in a railway station has concluded the business which brought him there and refuses to leave, and persists in refusing to leave, he becomes a trespasser, and the railway servants are at common law entitled to remove him by force if necessary.

Remarks per Lord Trayner on the law of trespass in Scotland.

Where a judge is asked to give a direction to the jury he is entitled to exercise his discretion, looking to the circumstances of the case before him, and is not bound to give the direction simply because as an abstract proposition it is correct in law.

Headnote:

This action of damages was tried before the Lord Justice-Clerk and a jury on 19th June 1899, and the jury returned a verdict for the defenders.

In the course of his charge to the jury the Lord Justice-Clerk directed them as follows, viz.—“That when a cabman in a railway station has concluded the business which brought him there and refuses to leave, and persists in refusing to leave, he becomes a trespasser, and the railway servants are, at common law, entitled to remove him by force if necessary.” The pursuer's counsel excepted to the direction, and asked the Lord Justice-Clerk to give the following direction, viz.—“That the pursuer, if lawfully in the station premises with his cab, did not wilfully trespass within the meaning of the 16th section of the Railways Regulation Act 1840 by accepting an engagement from a passenger to drive the passenger and his luggage from the station.” This direction his Lordship refused to give, whereupon counsel for the pursuer excepted, and a bill of exceptions was signed by the Lord Justice-Clerk.

Argued for pursuer:— On First Exception—The direction was erroneous in law. There was no authority entitling one man to use force to eject another from private property. [ Lord Trayner—There appears to be a notion that there is no law of trespass in Scotland, and that if a man trespasses on private property he cannot be ejected by force under any circumstances. I think that is erroneous. It is absurd to contend that if a stranger enters one's dining-room and refuses to leave when requested he cannot be removed by force. Of course in such a case one is not entitled to use more force than is necessary, or one might make himself liable for damages for assault.] On Second Exception—The direction desired being sound in law the Judge had no right to refuse to give it. [ Lord Young—A judge at a jury trial is not bound to give every direction asked which is legally sound—he is entitled to use his discretion, looking to the circumstances of the case before him.]

Counsel for defenders was not called upon.

Judgment:

Lord Young—I thought from the first, and I have heard nothing to affect the impression, that this bill of exceptions is quite unfounded. With reference to the second exception, I have already observed in the course of the discussion that where a learned Judge at a jury trial is asked to lay down a certain proposition in point of law, he has not merely to consider the soundness of it as an abstract proposition but also whether it is right and proper that such a

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direction should be given to the jury in the particular case before them. It might be a proper direction to give, qualified by a great number of explanations which it is inconvenient to give, and might lead to undesirable results. I think myself that the learned Judge was quite right in refusing to give the direction asked.

As regards the first exception, which is an exception to a direction which he has given, I am of opinion that the objection cannot be sustained. I think it is a perfectly sound direction. A cabman, or indeed any other person, but especially a cabman who was there not only bodily but with a carriage and horse, must obey the orders of the railway company's authorised servants as to leaving the station. When he is ordered to leave it he must leave it, and if he refuses and persists in refusing he may be turned out. He is not to remain there until it has been settled by some disinterested tribunal whether he has a right to remain and whether the servants of the railway company were wrong in ordering him out. If the railway servants are wrong in ordering him out, the duty of the cabman is to obey, and he will afterwards have his remedy for any injury which had been sustained on account of his having been turned out by their order in circumstances in which he ought not. I am therefore of opinion upon the bill of exceptions that it must be disallowed.

Lord Trayner, Lord Moncreiff, and the Lord Justice-Clerk concurred.

The Court disallowed the bill of exceptions.

Counsel:

Counsel for the Pursuer — Kennedy — A. M. Anderson. Agent— W. R. Mackersy, W.S.

Counsel for the Defenders— Balfour, Q.C.— Grierson. Agent— James Watson, S.S.C.
1899