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[Sheriff Court of Lanarkshire, at Glasgow.
In an action of damages for personal injury against the owners of a public hoist, the pursuer averred that there was a space between the foot of the door of the cage and the floor of it which was not fenced or protected otherwise than by a loose piece of flexible and worn-out canvas cloth, that while he was ascending in the hoist it gave a violent jerk upwards, causing him to lose his balance, and flinging him through the said canvas cloth against the framework in which the cage moved, and that the accident was caused through the fault of the defenders in “not providing necessary and sufficiently strong sides and doors to the said hoist or cage, in allowing said lowering and raising apparatus to remain in a defective and unsafe condition, causing it to rise in irregular and unexpected jerks instead of ascending in a regular and graduated manner,
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and in not providing a skilled and experienced man to attend to the management and manipulation of said hoist or cage.” Held ( diss. Lord Trayner) that the pursuer's averments were sufficiently specific, and that the action was relevant.
John Mulholland, carter, 33 Russell Street, West, Glasgow, raised an action against the Glasgow Harbour Tunnel Company, in the Sheriff Court at Glasgow, in which he sought to recover damages for personal injuries sustained by him on 15th November 1901 while crossing from one bank of the Clyde to another by means of a subway, of which the defenders were the owners, and which was used as a public thoroughfare for crossing the river.
The pursuer averred—“(Cond. 2) In order to effect said crossing the passengers and merchandise are first lowered from the street level in a wooden cage or hoist to a point beneath the bed of said river Clyde by means of apparatus or machinery moved by hydraulic or steam or other motive power. Said cage or hoist contains at each end a wooden folding door, the lower extremity of which stands about one yard from the floor of said hoist, the space between the said extremity and said floor having no protection or fencing whatever other than a flexible and worn out canvas cloth, the lower end and sides of which were not in any way fastened either to the floor of said cage or otherwise. (Cond. 3) Having crossed said river by means of said subway, the said passengers and merchandise are then raised to the level of the street by similar motive agency. Said subway, and all the apparatus and machinery connected with and used in the ascent and descent of passengers and goods traffic crossing the Clyde as aforesaid, are the property of the defenders, who are therefore responsible for the safe and efficient condition thereof. (Cond. 5) On said date the pursuer was crossing from the south to the north bank of the said river Clyde by means of said subway, in charge of a horse and lorry belonging to D. M'Kay & Sons. The pursuer had descended the southern cage or hoist, had crossed said subway to the north bank, and had begun to ascend the northern cage or hoist when suddenly, unexpectedly, and without any warning, the ascending cage gave a violent jerk upwards, causing pursuer to lose his balance, flinging him through the said canvas cloth against the framework in which the cage moves, and injuring him severely as after mentioned.” [The record was amended at the hearing by substituting the words printed in italics for the words “walls of said cage.” “(Cond. 6) The said accident was caused through the fault and negligence of the defenders, or of those for whom they are responsible, in not providing necessary and sufficiently strong sides and doors to the said hoist or cage, in allowing said lowering and raising apparatus to remain in a defective and unsafe condition, causing it to rise in irregular and unexpected jerks instead of ascending in a regular graduated manner, and in not providing a skilled and experienced man to attend to the management and manipulation of said hoist or cage. This defective and highly dangerous condition of said cage or hoist, both with respect to the absence of necessary doors and sides, as well as its liability to frequent jerking, and the absence of a skilful competent man in charge, were well known to the defenders or those for whom they are responsible, but were unknown to the pursuer. (Cond. 7) An examination or inspection of said hoist and apparatus by the defenders or their servants would have easily disclosed its defective and highly dangerous condition, both with regard to its spasmodic jerking and the absence of adequate sides and doors, but the defenders negligently failed to make any such examination or inspection, and their negligent failure in this respect caused, or materially contributed to, the accident.”
The defenders pleaded—“(1) The action being irrelevant should be dismissed, with expenses.”
On 28th November 1902 the Sheriff-Substitute ( Balfour) allowed a proof before answer.
The pursuer appealed to the Court of Session for jury trial.
The respondents maintained that there was no relevant case, and argued—The averments were too vague. The pursuer was bound to specify what was wrong with the construction, wherein the apparatus was defective, and in what respect the man in charge lacked skill and experience. The case of Macfarlane v. Thompson, December 6, 1884, 12 R. 232, 22 S.L.R. 179, was entirely in the defenders' favour; in that case the law was corrected which had been laid down in Fraser v. Fraser, June 6, 1882, 9 R. 896, 19 S.L.R. 646; and Walker v. Olsen, June 15, 1882, 9 R. 946, 19 S.L.R. 708. The present was not such a case as to place on the defenders the onus of showing how the accident could have happened as in the case of Oliphant v. Johnstone & Macleod, February 3, 1894, 21 R. 531, 31 S.L.R. 422. It was not sufficient to aver that the machinery broke down in ordinary use. If any inquiry was to be allowed the case should be sent back to the Sheriff-Substitute for proof before answer.
Argued for the appellant—The averments were sufficiently specific— Macfarlane v. Thompson, and Oliphant v. Johnstone & Macleod, cit. sup. The case should be sent to a jury.
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The pursuer is a carter, and in the course of his business he was crossing from the south to the north bank of the Clyde by this subway, and the cage on the north bank had begun to ascend, and he avers that “suddenly, unexpectedly, and without any warning the ascending cage gave a violent jerk upwards,” causing him to lose his balance, and flinging him through the canvas which is described, and injuring him severely. Now it is stated in the next article of the condescendence that this accident, which was serious upon the statement of it, was caused through the fault and negligence of the defenders. [ His Lordship then quoted condescendence 6.] Now, when a man is the victim of such an accident as is here said to have occurred I do not think it is incumbent upon him before raising an action to have skilful experts employed to examine the premises, machinery, and method of working, and report upon the condition of matters at the date of the accident, in order to enable him to state on record in what respects the machinery, &c., was defective. I know of no law that lays such an obligation upon him. I do not know that a carter, such as the pursuer, would be in a position to send experts to the works in order to make an examination of the kind. It is incumbent upon him, however, at the trial to satisfy the jury, or the judge if the case is tried without a jury, that what occurred would not have occurred if everything had been in proper order. He must prove to the satisfaction of the tribunal that what happened was attributable to defective machinery, or inexperienced or unskilled working.
In my opinion such a case as is here stated ought to be sent to trial; and it occurs to me that a case such as this, in which the public as well as the pursuer is interested, is a most suitable case to be tried by a jury.
The Court appointed the cause to be tried by a jury upon the record as amended.
Counsel for the Pursuer and Appellant— Watt, K.C.— J. H. Henderson. Agents— Sibbald & Mackenzie, W.S.
Counsel for the Defenders and Respondents— Jameson, K.C.— M'Clure. Agents— W. & J. Burness, W.S.