Scottish Court of Session Decisions

Robert M'Keever, provision merchant's manager, Glasgow, brought an action in the Sheriff Court at Glasgow against the Caledonian Railway Company for damages on account of personal injuries sustained by him. The pursuer averred that on 1st December 1899 he was a passenger by one of the defenders' trains from Glasgow to Garnkirk, and that on the arrival of the train at the latter station about 6 p.m. he alighted therefrom and proceeded to leave the platform. “(Cond. 3) The pursuer had reached a point opposite to a wicket-gate on the north side of said station, and not far from the east end of the station platform, being the platform at which the said train arrived, when a ticket-collector in the employment of the defenders, and whose name is to the pursuer unknown, took delivery of the tickets of the pursuer and his two fellow-passengers. It was intensely dark at the time, and the pursuer, in the belief (induced by the fact that the defender's said ticket-collector was standing at the entrance therefrom and near thereto) that the said wicket-gate formed one of the exits from said station available to the public, passed, accompanied by his said two fellow-passengers, through said wicket-gate, which at the time was open, and at which the defenders' said ticket-collector was stationed as aforesaid, and was suddenly and unexpectedly precipitated over an unfenced stair on the north side of and adjacent to said wicket-gate, and forming the exit therefrom. The pursuer fell, and thereafter rolled down an open embankment on one of the sides of said unfenced stair, some 5 feet or thereby, and sustained the injuries after mentioned. (Cond. 5) The defenders, or those for whom they are responsible, were in fault in allowing the said wicket-gate to remain open. It ought not to have been open at the time of said accident, and particularly in the darkness of the night. The said station was frequented by members of the public and others, and said gate, by being left open in

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the circumstances condescended on, constituted a serious danger and trap. The defenders were or ought to have been well aware of this, and ought to have had said gate closed, particularly on the arrival of a train by night. Their failure to do so on the occasion in question was the direct cause of the pursuer's injuries, but they culpably and in entire disregard of the safety of the public, and in particular of the pursuer, permitted said gate to remain open, with the result that pursuer was injured as aforesaid. There was nothing to indicate to the pursuer or his fellow-passengers that this gate did not form and was not one of the usual entrances to and exits from said station, and the pursuer received no warning, as he in the circumstances condescended on ought to have, from the defenders' said ticket-collector of the danger involved in passing through said gate. The lamp at said wicket-gate was not lighted as it ought to have been, and the defenders' said ticket-collector by standing at or near said wicket-gate, and collecting the tickets from pursuer and his fellow-passengers, thereby gave an invitation to pursuer and his fellow-passengers to pass through said wicket-gate, with the result that the pursuer was injured as aforesaid.”

In defence the Railway Company pleaded, inter alia—“(1) The pursuer's averments are irrelevant.”

On 16th March 1900 the Sheriff-Substitute ( Strachan) repelled the first plea-in-law for the defenders and allowed a proof.

The pursuer appealed for jury trial, and lodged an issue for the trial of the cause.

On the motion for the approval of the issue, the defenders objected to the relevancy of the action, and argued—The action was irrelevant, for the pursuer's averments did not disclose fault on the part of the defenders. It was not enough for the pursuer to say that he came to a dark place and fell down. He was bound to look where he was going, or to inquire if the place was unfamiliar to him— Forsyth v. Ramage & Ferguson, Oct. 25, 1890, 18 R. 21; Fleming v. Eadie, Jan. 29, 1898, 25 R. 500; Driscoll v. Particle Burgh Commissioners, Jan. 10, 1900, 2 F. 368; Walker v. Midland Railway Company, 1886. 2 T.L.R. 450.

Counsel for the appellant were not called upon.