Scottish Court of Session Decisions

The General Turnpike Act 1831 (1 and 2 Will. IV, cap. 43), section 96, inter alia, enacts—“If any person shall leave any waggon, cart, or other carriage whatever upon such road or upon the side or sides thereof without any proper person in the sole custody or care thereof longer than may be necessary to load or unload the same … or shall not place such waggon or other carriage during the time of loading or unloading the same, or of taking refreshments, as near to one side of the road as conveniently may be, either with or without any horse or beast of draught harnessed or yoked thereto … every person offending in any of the cases aforesaid shall for each and every such offence forfeit and pay any sum not exceeding fifty shillings sterling, over and above the damages occasioned thereby.”

The Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. cap. 51), section 123, enacts, inter alia, that the above enactment, in so far as the same is not inconsistent therewith, shall be and is incorporated with the Act, and in any county shall extend and apply to all the highways made or to be made within such county.

The Locomotives on Highways Act 1896 (59 and 60 Vict. cap. 36), section 1 ( b), enacts—“A light locomotive shall be deemed to be a carriage within the meaning of any Act of Parliament, whether public, general, or local, and of any rule, regulation, or bye-law made under any Act of Parliament.…”

In September 1906 Arthur Macfarlane, horsehirer, Kingussie, raised an action in the Sheriff Court at Inverness against William Newby Colam, civil engineer, Ard-na-Coil, Newtonmore, to recover the sum of £38 with interest, as damages for injuries sustained by a carriage and two horses belonging to him.

On March 12, 1907, the Sheriff-Substitute ( J. P. Grant) pronounced this interlocutor—“Finds in fact that about 6 p.m. on 30th July 1906 the defender's motor car was left by the defender's son upon the public road without any proper person in the sole custody or care thereof; that a pair of horses, the property of the pursuer, drawing a waggonette, also th property of the

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pursuer, took fright at the said motor car and upset the waggonette, causing damage to themselves and the waggonette; and in law that there was no contributory negligence on the part of the pursuer or his servant driving the waggonette, and that the defender is liable to the pursuer for the damage sustained, and assesses the same at thirty-three pounds ten shillings sterling, for which sum decerns against the defender: Finds the pursuer entitled to his expenses,” &c.

Note—“The motor car belonging to the defender in this case was left by his son upon the roadway of the public road between Kingussie and Newtonmore about 6p.m. on the afternoon of 30th July 1906. No person was left in charge of the car, but Mr Colam jr. had stopped the machinery and disconnected it, in this complying with the Motor Car Regulations on the point.

“A waggonette and a pair of horses belonging to the pursuer came from the direction of Newtonmore, and the horses taking fright at the motor car, the waggonette was overturned and the horses and the waggonette damaged.

The driver of the waggonette was a careful and experienced man, and in no way by his fault contributed to the accident.

The available breadth of the roadway was a little more than 15 feet; of that the car occupied about one-third, leaving about 10 feet passage for the waggonette. There was a stone wall on the opposite side of the road to the car, so that there was no possibility of expanding the space by going on the verge.

There was thus no absolute obstruction of the highway; ten feet of an opening are enough for the passage of a waggonette and pair, assuming the driver was of ordinary skill and the horses perfectly quiet.

There was a grass verge to the road on the side on which the motor car lay, but it was not a place where Mr Colam could have placed his car, having reasonable regard to its care, nor could he prudently have placed it on either of the approaches of the house which he was visiting, an unfinished house his father was building.

There remains the one point on which culpa may be inferred on the part of young Mr Colam, whether he acted in breach of the statutory regulations under the Road Acts in leaving his car unattended on the highway. Section 96 of 1 and 2 William IV, cap. 43, as incorporated in the Roads and Bridges (Scotland) Act 1878, section 123, inter alia enacts … [ quotes, supra]…

A motor car is a carriage in the sense of the Road Acts, vide Locomotives on Highways Act 1896, section 1 ( b).

Mr R. L. Colam did leave the car in question on the road without any proper person in the sole custody or care thereof. I cannot doubt that the fact of the car being there was the immediate cause of the accident. The horses were skilfully driven; they had passed motors in motion eight times that day without becoming unmanageable; and no other cause can be suggested for this accident than this stationary and unattended motor car placed where it ought not to be according to the Road Acts. There is thus, I consider, a direct relation between young Mr Colam's act and the damage that resulted.…”

The defender appealed to the Court of Session.

Counsel for the defender (appellant) on opening the case was stopped by the Court.

Argued for the pursuer (respondent)—The use of the high road was an unreasonable and unwarrantable one which rendered defender liable in damages— Harris v. Mobbs, 1878, 3 Ex. D. 268, and Wilkins v. Day, 1883, 12 Q.B.D. 110, The judgment of the Sheriff-Substitute should be affirmed.