Scottish Court of Session Decisions

Lord President—This is a bill of exceptions and a motion for a new trial upon the ground that the jury have returned a verdict contrary to the evidence. The action is one at the instance of Michael Keeney against one John Stewart, who is designed as the proprietor of heritable subjects at 196–198 Stobcross Street, Glasgow. The pursuer in his condescendence sets forth that “on 25th April 1908, about 11·30 p.m., the pursuer was proceeding westwards along Stobcross Street (one of the principal streets of Glasgow, and where, as a member of the public, he was entitled to be), and when walking on the pavement immediately in front of defender's said property his foot went into a hole forming a ventilating trap which was completely uncovered, unprotected, and unlighted. The pursuer was thrown heavily to the ground and sustained severe injuries as aftermentioned”; and he goes on to say, “said accident was caused by the fault of the defender or of those for whom he is responsible. Said ventilating trap was used in connection with defender's said property and was part thereof. Further, the pavement in which said trap-hole was placed was the property of the defender, and it was his duty to maintain the same.” He then avers that it was the duty of the defender to protect the said ventilating trap by an iron grating properly fixed to the pavement, that the ventilating trap was not so protected, the iron grating having for some time previous to the accident been in an insecure condition and liable to displacement, and having been in fact displaced at the time of the accident, and that the defender was aware of the unsafe condition of the trap and grating, his factor having received warning thereof. The defence is, in the first place, a general denial of these statements, and then a specific denial of the alleged accident, and a positive allegation that the defender had not fallen at all, but that he had been injured whilst fighting with another man in the neighbourhood of Stobcross Street, and that he had subsequently sat down deliberately beside the pavement at this place, kicked away the grating, and pretended that his injuries were the result of a fall sustained in the manner condescended on. Before the jury a great deal of time and energy was spent in investigating this story. The defence was not altogether omni suspicione major, for it was to a large extent rested upon the evidence of one witness, of whom it was alleged that, hearing that the pursuer was about to raise this action, he had claimed to he allowed to stand in with the pursuer in the damages to be recovered. I mention these circumstances not because there is any question as to the competence of such evidence, but for the fact that the attention of the jury was largely directed to the investigation of these conflicting stories, and not perhaps fixed as much as it might have been upon what was at the bottom of the case. The facts being as I have so summarised them, we come to the bill of exceptions. The bill of exceptions bears that “on the conclusion of the evidence adduced for the pursuer, counsel for the defender moved his Lord-ship to direct the jury, in respect that the pursuer had not proved that the pavement in question was the property of the defender, to return a verdict for the defender, which direction his Lordship refused to give, whereupon counsel for the defender excepted to his Lordship's ruling.” Now, it seems to me that this bill of exceptions must fail upon two grounds. In the first place, I do not think you can ground a bill of exceptions upon the refusal of the judge to manage a trial in a particular way, because that is all that Lord Kinnear has done. It is well known that at the end of the pursuer's evidence counsel for the defender may ask the judge to direct the jury to return a verdict for the defender on the ground that there is no evidence to support the pursuer's case. But if the judge does not choose to do so it does not seem to me that he thereby gives a wrong direction in law. Nor is the defender prejudiced in the conduct of his case, because, if he has the courage of his opinions, he need not lead any evidence at all, and may allow the case at once to be put to the jury. It might be that if the Judge had refused to give a proper direction in his charge that might properly ground an exception, but that is not what happened here. This is an exception because the Judge did not stop the trial at this particular stage. But there is another fatal blot. It is trite law that when exception is taken, not to what the Judge did say but to the fact that he did not say something more, it must be shown that the direction he refused to give is of the essence of the case. Here the Judge was asked to say that in respect that the pursuer had not proved that the pavement in question was the property of the defender, the pursuer had failed to prove his case. Such a direction would have been wrong, because it would not have been exhaustive. No such consequence would follow in law. It is perfectly possible for a person to have a duty with respect to something of which he is not the proprietor, for if that were not so an occupier could have no responsibility with respect to the condition of the subjects which he occupies. That ends the bill of exceptions.

But when I come to the motion for a new trial I look in vain for any proof of a duty on the defender with regard to this trap which communicates with this town sewer. All the pursuer did was to put in titles which described the property as bounded by the street, and he referred to the provisions of the Glasgow Police Act as to the duty of proprietors to maintain the adjacent pavement. That is not enough.

I think he should have shown that there was a duty on the defender as to this particular trap. One can easily see that the magistrates may have a right to put in traps communicating with public sewers, and from this might be inferred a duty of maintaining these traps upon the magistrates. But at any rate the proof is silent as to any duty upon the defender to keep this trap in position. The grating may have been lifted by some mischievous person or by children playing in the street. It is a new idea that a person is to be liable if someone else puts his property into a dangerous condition. A different case would arise if it were shown that the knowledge of a dangerous condition of this pavement had been brought home to the defender, but that element is also absent in the present case. I am therefore of opinion that this verdict is not supported by the evidence, and that therefore the motion for a new trial should be granted.

Lord M'Laren—I think it is clear that if the Judge presiding at the trial is asked to withdraw the case from the jury, this is an appeal to his discretion, and if he does not see his way to grant the request review is not competent by bill of exceptions.

As to whether there should be a new trial, I have felt it to be the weak point in the pursuer's case that it does not follow from the fact that the proprietor of the house is also the owner of the adjacent pavement that he is bound to keep in order the hatches placed in the pavement for sanitary purposes. The sanitation of the town is in the hands of the local authorities, and it is their duty to see that these air holes are maintained in good order. Even if it were proved that it was the proprietor's duty to maintain the hatches in a proper condition, there is no evidence before us that they were left open through any fault of his. The hatch might, for example, have been tampered with by children or by some mischievous person, and I am not going to lay down that the owner of property must keep a watchman for the purpose of seeing that his property is not interfered with. Had there been evidence that the hatch had been left open for some days, that would have been prima facie evidence of negligence on the part of those whose duty it was to look after them, but there is nothing to show when or for what length of time the cover of the hatch had been displaced. In this case, I think there is no evidence of negligence on the defender's art, and that accordingly the verdict must be set aside.

Lord Kinnear—I agree with your Lord-ships. I declined to withdraw the case from the jury at the conclusion of the evidence adduced for the pursuer for the reasons which have been stated by your Lordships. In regard to the other question—whether there was proof of negligence on the part of the defender—it appeared to me at the trial that there was no evidence to show that the defender was under any duty to keep the trap in order. Indeed it seemed to me that the pursuer had failed to prove that the defender was bound to keep even the pavement in order. Very possibly he was, but that would depend on whether proceedings had been taken under the Glasgow Police Act, and there was no evidence to show that any such proceedings had been taken in fact. Supposing, however, that this assumption in favour of the pursuer were made, it could not be held that if the municipality has put a trap in the pavement in connection with the public sewer, the owner of the adjacent property is bound to superintend the operations of the municipality and see to the proper construction of the trap, or even that he would have any right to interfere with what was done by the municipality. The only evidence tending in any degree to indicate whose duty it was to keep the trap in order was that of a policeman, who said that if he had observed that the trap was unsafe he would have reported this at the police office. It is out of the question to infer from that that the defender was bound to keep the trap in order. Further, even if the duty of maintaining the trap lay on the defender, it was not shown in this case how the covering came to be removed. A house owner is not bound to keep such a careful watch over apparatus of this kind as to secure that mischievous persons or children do not tamper with it. Accordingly, on the whole matter, while I accept the verdict as conclusive that the pursuer was injured, I am satisfied that there was no evidence to prove that the defender was responsible for these injuries, and therefore I think there must be a new trial.

Lord Pearson—I am of the same opinion.