Scottish Court of Session Decisions

This was an action of damages for personal injury at the instance of Mrs Margaret Braddon or Cooper, residing at Greenhill Cottage, Rutherglen, against the Caledonian Railway Company.

The pursuer averred that she was a widow of fifty-six years of age, and that she carried on business as a draper in High Street and Nelson Street, Glasgow, and travelled daily to and from Glasgow by the defenders' railway; that on 11th February 1901 she entered one of the defenders' trains at Rutherglen by the south door, and that she was alone in the carriage. “(Cond. 3) Shortly after the train left Rutherglen Station the other or north door of the compartment swung open. Almost at the same moment a train came up in the opposite direction, going at a considerable speed. The motion of the passing train caused the open door to swing back and

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forward with great violence several times against the carriage in which the pursuer was. The glass in the window of the door was broken into fragments, and the woodwork of the door was splintered. It seemed to pursuer that the passing train had dashed into collision with the train she was in. While the train was passing the pursuer was afraid to move. She was greatly agitated, being in terror momentarily of being struck and cut by the breaking glass and fragments of the woodwork.… (Cond. 4) By the occurrence the pursuer was greatly alarmed, and her nervous system received a shock which resulted in lasting injury. After getting out of the train the pursuer went to a wholesale warehouse at which she had some business to do, but she found herself quite unable to undertake it, and she had to be attended by one of the assistants, who saw her to the car for her High Street shop. She suffered so much from nervous shock that she was quite unable to remain there at business and had to be taken home. She had immediately to go to bed, and was thereafter confined to bed for three weeks owing to the injury caused to her nervous system by the shock. During this period she was attended by her medical adviser, and suffered from sleeplessness, severe pains, prostration, and general weakness with vomiting. For fully a fortnight she was not allowed to rise owing to giddiness which overcame her when she attempted to stand, and she also suffered from numbness of the limbs. Even after she was sufficiently recovered to be able to go about she continued to suffer from the after effects of the shock, and down to the present she has not fully recovered her health, and is now much troubled with loss of memory. (Cond. 5) In addition to the personal suffering caused to her, pursuer sustained damage from the foresaid occurrence owing to the interference with her personal attention to her business.… (Cond. 6) The occurrence by which the pursuer was injured as aforesaid was due to the fault or negligence of the defenders' servants. The door swung open while the train was in motion through not being securely fastened. The absence of proper fastening would have been detected had any reasonable inspection been made before the train left on its journey, but such inspection was either not made at all, or was conducted in a careless and inefficient way.… (Cond. 7) The injuries sustained by the pursuer as aforesaid are the direct result of the defenders' fault.” …

“The defenders pleade—“(1) The pursuer's averments are irrelevant and insufficient to support the conclusions of the action.”

The pursuer proposed an issue in ordinary form for the trial of the cause.

On 24th January 1902 the Lord Ordinary ( Stormonth Darling) disallowed the issue proposed and dismissed the action.

Opinion.—“I think there is here no issuable matter. [ His Lordship then narrated the pursuer's averments and proceeded]—There is thus a relevant averment of fault, for, if a railway carriage door swings open of itself in the course of a journey it cannot have been securely fastened by the company's servants. There is also a relevant averment of physical injury resulting from the fault, although through the medium of mental agitation and fright.

I shall not attempt to formulate any general rule as applicable to cases of this exceptional kind. In particular, I do not decide this case on the authority of Victorian Railways v. Coultas, decided by the Privy Council in 1888 ( 13 App. Ca. 222), where their Lordships held that damages awarded to a lady for physical and mental injuries occasioned by fright at an impending collision between a train and the vehicle in which she was driving at a level-crossing were too remote. Both in England and Ireland the reasoning of Sir Richard Couch in delivering judgment in that case has been more than once respectfully called in question, and I should humbly think that such a rule was not the law of Scotland in any case where it appeared that the fright resulting from the negligent act might reasonably arise in a mind of average intelligence and strength. Accordingly, if a Scottish court had to deal with a state of facts similar to those in Dulieu v. White & Sons ( 1901) 2 KB 669, where Kennedy and Phillimore, JJ., held that damages were recoverable in respect of a horse and van having been driven through the window of a public-house and having so terrified the wife of the publican standing behind the bar that she sustained a severe nervous shock and gave premature birth to a child, I think that our judgment would probably be the same. The turning point of such cases must be whether the terror produced is a natural result of the negligent act. I agree in a passage from the interesting opinion of a Massachusetts judge in Spade v. Lynn and Boston Railroad (1897), 60 Amer. St. Rep. 393, where he says ‘not only the transportation of passengers and the running of trains, but the general conduct of business and of the ordinary affairs of life must be done on the assumption that persons who are liable to be affected thereby are not peculiarly sensitive and are of ordinary physical and mental strength.’

If this standard be applied, I think it is impossible to say that the terror which this lady says she felt, and which made her take to bed for 3 weeks, was the natural result on a mind of ordinary strength of a carriage door swinging open and having its glass broken. Unlike the women in the cases of Coultas and Dulieu, she was never for one moment in the smallest danger of injury. If she thought otherwise, her fears, taking everything she alleges as proved, must be pronounced to have been quite unreasonable.”

The pursuer reclaimed, and argued—The question whether the pursuer's injuries were the natural result of the defenders' fault should be submitted to a jury— Bell v. Great Northern Railway Company of Ireland, 1890, 26 L.R.I. 428; Byrne v. Great Southern and Western Railway Company,

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referred to ibid, at p. 441; Dulieu v. White & Sons ( 1901) 2 KB 669. The fact that the pursuer had sustained no injuries apart from nervous shock did not take away her right to have her case sent to trial— North British Railway Company v. Wood, July 2, 1891, 18 R. (H.L.) 27, 28 S.L.R. 921.

Argued for the respondents—It was not averred that any glass or splintered wood came into the carriage, or that the pursuer was ever in actual danger. The responsibilities of a railway company were to be tested as in a question with a person of ordinary nerve. The question whether the alleged occurrence led naturally to the consequences complained of was a question for the Court.