Scottish Court of Session Decisions

This was an action raised in the Sheriff Court at Paisley by Mrs Elizabeth Mullen or Dunn, widow, residing at Crosslee, near Houston, against John Charles Cuninghame, Craigends House, Johnstone, in which she craved decree for payment of £250 as reparation for the death of her son.

The pursuer averred, inter alia, as follows:—“(Cond. 2) On or about the 13th day of August 1901, between three and four o'clock afternoon, the pursuer's only child James Shearer Dunn, aged eleven years or thereby, was playing on the roadway which runs from the village of Crosslee to Bridge of Weir at a point opposite Crosslee Mill in said road close to a mill-lade known as Crosslee Mill Lade, the property of the defender, when owing to the said lade being unfenced, unguarded, and unprotected, the said child slipped into the water in said lade and was drowned. The said road from Crosslee to Bridge of Weir aforesaid is at the place in question also the property of the defender. (Cond. 3) The said accident was due to the fault and negligence of the defender, or of those for whom he is responsible, in failing to have said mill-lade, so far as it abuts and forms part of the said roadway, particularly at the place in question, fenced, guarded, or

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protected. The said mill-lade being on the road leading from Crosslee to Bridge-of-Weir aforesaid is much frequented by members of the public and others, and particularly by children of tender years. This was or ought to have been well known to the defender. In these circumstances it was the defender's duty, or the duty of those for whom he is responsible, to fence or otherwise protect or guard the said road or said mill-lade so far as it forms part of the said road, particularly at the place in question, where access to said mill-lade is easily obtainable, and particularly in view of the number of children who resorted there, and so to render both safe and secure.” …

The defender denied fault. In his answers he stated as follows—“(Ans. 2)… Admitted that the lade and private path in question are situate on the lands of Crosslee belonging to the defender.” …

The defender pleaded, inter alia—“(1) The action is irrelevant. (2) The averments of the pursuer, so far as material, being unfounded in fact, defender is entitled to be assoilzied. (3) The pursuer not having suffered loss, injury, and damage through the fault of the defender, or of those for whom he is responsible, the defender is entitled to be assoilzied with expenses.”

By interlocutor dated 6th March 1902 the Sheriff-Substitute ( Lyell) held the action relevant and allowed the parties a proof of their averments.

The pursuer having appealed to the Court of Session for jury trial, the defender objected to the relevancy, and argued (1) that the action fell to be dismissed as irrelevant; (2) that in the event of the Court holding the action relevant the case should be sent to proof and not to a jury. In support of his second contention he argued that as the case involved questions as to the ownership of heritable property, and as to the existence of a public right-of-way along the mill-lade in question it was more appropriate for inquiry by means of a proof than for jury trial. He cited the following authorities:— Pollock v. Mair, January 10, 1901, 3 F. 332, 38 S.L.R. 250; Bethune v. Denham, March 20, 1886, 13 R. 882, 23 S.L.R. 456; Mitchell v. Sutherland, January 23, 1886, 13 R. 882 (note), 23 S.L.R. 317; Tosh v. Ferguson, October 27, 1896, 24 R. 54, 34 S.L.R. 46.

The Court, holding that the action was relevant, called for a reply only as to the method of inquiry.

Argued for the pursuer—This was a case of personal injury, and such cases were peculiarly appropriate for jury trial— M'Intosh v. Commissioners of Lochgelly, November 3, 1897, 25 R. 32, 35 S.L.R. 50. He had a right under statute to appeal for jury trial. The cases cited by the defender were distinguishable from the present. The case of Bethune was before the Court in M'Intosh and was fully considered; the case of Tosh was really an action of accounting; the case of Pollock involved the consideration of local customs, and the bulk of the evidence in that case was that of local witnesses.