Scottish Court of Session Decisions

William Brown Wilson, residing at 7 Kemp Place, Edinburgh, brought an action against Wordie & Company, carting contractors, Lothian Road, Edinburgh, in which he sued them for £500 as solatium for the death of his daughter.

He averred—“(Cond. 2) On Saturday, 14th March 1903, the pursuer's wife was walking up Lothian Road in the direction of Grindlay Street with her youngest child in a perambulator, and her only daughter Marjory Wilson, who was then six years of age, walking by her side. As they were passing the island platform situated for the accommodation of foot-passengers directly opposite the Lothian Road Board School, an ammunition waggon belonging to the 1st Edinburgh City Royal Garrison Artillery Volunteers, and drawn by two horses hired by them as after mentioned from the. defenders, suddenly came from the direction of Grindlay Street at a furious runaway pace. Marjory Wilson accordingly took refuge on the said island platform, but the horses of the said ammunition waggon dashed on to the platform, knocked her down, and so seriously injured her that she died shortly afterwards. The said horses, which were quite unsuited for the purpose of drawing guns and ammunition waggons on account of being untrained and unaccustomed to such work, had run off and got beyond the control of the drivers, who were young members of the Volunteer Corps. (Cond. 3) The said Volunteer Corps, for the purposes of a march out in the public streets of Edinburgh, had entered into a contract of hire with the defenders, under which the defenders undertook to supply a considerable number of horses for the purpose of drawing heavy guns and ammunition waggons along the public streets. It was the duty of the defenders, knowing that the said horses were for use on the public streets, to have supplied quiet and well-trained horses, but they failed to do so, and the death of the pursuer's said daughter was thus caused by the pursuers' fault or negligence. The defenders, knowing that the horses which they used for their business had not been trained or exercised in drawing guns and ammunition waggons, and that their use involved danger to the public, stipulated with the said Volunteer Corps that they should be relieved of any damage which happened to the public while the horses were under their charge. In point of fact the horses so supplied by the defenders, including the horses which ran away, had not been trained or exercised in any way in such work, and such training or exercise was necessary before they could be safely used in the public streets. In particular, the horses attached to the runaway gun waggon already condescended on were young and restive and had never previously been yoked together as a pair, and had never before drawn an ammunition waggon. They were harnessed differently from what they were accustomed to. The defenders were well aware of all these circumstances, and should not have hired out said horses for said purpose. The defenders further were well aware that the horses could not be safely yoked as a pair to the said military waggon. The said horses, in consequence of their not having been trained, resisted violently being yoked at the yard at Lochrin Place, to which they were sent by the defenders to be harnessed to the gun waggons. (Cond. 4) The accident was caused through the fault of the defenders. It was gross negligence on their part to hire out the said untrained horses for use on the public streets of Edinburgh.” …

The pursuer pleaded—“(1) The pursuer's daughter having been killed through the fault of the defenders, they are liable in reparation.”

The defenders pleaded—“(1) The pursuer's averments are irrelevant and insufficient to support his pleas. 3) The said accident not having occurred through any

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fault on the part of the defenders they ought to be assoilzied.”

The Lord Ordinary ( Ardwall) on 9th June pronounced the following interlocutor—“The Lord Ordinary having heard counsel for the parties on the adjustment of issues and the first plea-in-law for the defenders, sustains the said plea: Disallows the proposed issue for the pursuer, and dismisses the action, and decerns.”

Opinion.—“On 14th March 1903 the pursuers' child was run over and killed while on an island platform in Lothian Road by an ammunition waggon belonging to the 1st Edinburgh City Royal Garrison Artillery Volunteers drawn by horses belonging to the defenders, and driven by a young artilleryman. The accident was a sad and deplorable one, but I am of opinion that the pursuer has failed to state a relevant case against the present defenders, and that he is not entitled to an issue. The defenders are carting contractors and use a number of horses in their business. They were applied to by the 1st Edinburgh City Royal Garrison Artillery Volunteers for horses to draw their guns and ammunition-waggons on Saturday, 14th March 1903. They gave them horses which the pursuer states (Cond. 3) ‘they used in their own business,’ and the pursuer seeks to make them liable as for fault because such horses ‘had not been trained or exercised in drawing guns and ammunition waggons.’ This is really the whole case, and it seems to me to be irrelevant. No duty lay on the defenders, who were mere carting contractors, and not horse dealers or horse breakers, to train horses for artillery service; indeed, they had not the means of doing so. Further, it cannot be said they were in fault in not refusing to give the artillerymen horses at all; it was not for them but for the artillerymen to judge whether the horses in question were fit for artillery purposes, and could be safely used for drawing guns and ammunition-waggons on the public streets.

“But apart from all this, I am of opinion that the person liable to members of the public for an accident such as this is the person using the horses either by himself or his servants, and not the person who hired out the horses to him, and who has no control of them when they leave his stable. It may be that the person who takes the horses on hire will have an action of relief against the person who hired out the horses, if the accident was due to inherent vice in the horses. But the horse—hirer has in the ordinary case no contract with and no duty to the public, whatever may be his liabilities to the person to whom he has hired out a horse.”

The pursuer reclaimed, and argued that there was a relevant case of fault set forth on record against the defenders— Cotteril v. Starkey, 1839, 8 Carrington & Payne, 691.

The respondents argued—(1) There were no relevant averments of fault. (2) In any event, the pursuer had no title to sue the defenders. The only persons against whom he could have a claim were the persons who had taken the horses out for hire and under whose control they were at the time of the accident. Liability could not arise merely ex dominio, and there was no contract between the pursuer and the defenders— Laugher v. Pointer, 1826, 5 Barn. & Cress. 547.