Scottish Court of Session Decisions

Mrs Helen Shepherd or Hendrie, as an individual, and as tutrix and administratrix-in-law for her pupil children, raised an action against the Caledonian Railway Company concluding for £1000 as damages and solatium for the death of her husband Matthew Hendrie, miner, who was killed on 4th October 1907 by being struck by a train on the level-crossing where the Caledonian Railway between Larbert and Stirling crosses the public road from St Ninians to Millhall colliery.

The pursuer averred—“(Cond. 3) At said level-crossing there are two large iron gates, one on each side of the railway. These are kept locked, and are only opened when vehicular traffic, cattle, &c., requires to cross the railway. There are also at said level-crossing two small wicket-gates used by foot-passengers, which are never locked or shut in any way. Said open gates always afford an invitation to the public to cross the line, the defenders permitting the passage of the public through said wicket-gates at their pleasure, without giving them any warning of the approach of a train. This system, which was well known to the defenders, was dangerous to the public, who were lawfully using the public highway over which the defenders' line of railway runs. A gatekeeper in the defenders' service resides in a small cottage by the side of the railway, at the level-crossing, and he attends to the opening and closing of the large gates. The level-crossing is at the bottom of a gradient which slopes downwards from south to north, and trains running from Larbert to Stirling shut off steam about two miles south of the level-crossing and approach the said crossing almost silently. Millhall pit is situated quite close to the levelcrossing, and the noise caused by the working of the air fan makes it extremely unlikely that anyone will hear the approach of a train coming down said gradient, and added to the danger to which the said open wicket-gates exposed the public, especially when it was dark.… (Cond. 4) The road over which the defenders' railway passes at said level-crossing is a highway and a public carriage road. At the time said railway line was constructed there was little traffic on said road, in particular little foot traffic. There is now, however, very considerable traffic on said road, and the traffic has greatly increased within recent years. In particular, the number of foot-passengers using the level-crossing has greatly increased. Two large coal pits have been recently opened at Millhall and at Fallin, which is about a mile distant from Millhall on the same side of the railway, and the majority of the miners employed at these pits reside at St Ninians, and require to cross the level-crossing when going to and returning from their work.… (Cond. 5) The defenders, in breach of their duty, have entirely failed to take the precautions necessary to secure the safety of the public using said level-crossing, and, in particular, to take the precautions hereinafter specified. The accident to the deceased was due to their failure to do so and the negligence of their said gatekeeper as after mentioned. The night on which said accident happened was dark and foggy, and deceased had nothing to warn him of the approaching train, and he did not see the train that struck him, or at all events did not see it in sufficient time to enable him to avoid it. The train that struck him came from the south, and, as before-mentioned, trains coming from that direction approach the crossing almost silently. It was the duty of the defenders to have the wicket-gates kept closed when a train was due or nearly due to pass said level-crossing. At the time when the deceased reached the level-crossing on his way home a train running from Larbert to Stirling—being the train which ultimately struck the deceased—was due to pass the level-crossing, and the gates, including the wicket-gates for passengers, ought to have been obstructed or locked, and the deceased and other foot-passengers thus warned of danger and prevented from attempting to cross the railway line when the train was passing. The wicket-gates were, however, open, and the deceased was thereby led to believe that it was safe for him to cross the railway. The defenders should also have had a servant stationed at the crossing whenever a train was due or almost due to ass, whose duty it should have been to have warned any foot-passengers against

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crossing the line.… In point of fact, the defenders' said gatekeeper, in breach of his duty, left the crossing and went into his dwelling-house shortly before the train which struck the deceased was due at the level-crossing, and was not, as he ought to have been, stationed at the crossing when the deceased reached it. It was the duty of the defenders' said gatekeeper to have remained at the gates until said train had passed, and to have warned the deceased and any other foot-passengers against crossing the line, and this duty the said gatekeeper wholly disregarded.”

On 20th March 1908 the Lord Ordinary ( Salvesen) found that the summons did not disclose any issuable matter and assoilzied the defenders.

Opinion.—This action arises out of the death of Matthew Hendrie, a miner, who was killed while crossing a level-crossing on the defenders' line of railway from Larbert to Stirling. The defenders plead that the action is irrelevant.

The Act under which the level-crossing in question was constructed is the Scottish Central Railway Act 1845. This Act incorporates in the first section, inter alia, the Railway Clauses Consolidation (Scotland) Act 1845, so far as not otherwise provided for by the Special Act, and section 38 authorises the company to cross on the level the road along which the deceased was proceeding before he stepped on to the railway line. The pursuer's record seems to disclose a case of negligence at common law only, and does not found specially on any statutory regulation which is said to have been violated. At the debate, however, the pursuer's counsel founded on the provisions of 2 and 3 Vict. cap. 45, section 1, by which it is enacted—‘… ( quotes, v. supra in first rubric)…’ This section has never been repealed, although a subsequent section (section 3) was repealed by the Statute Law Revision Act 1874.

The importance to the pursuer of this statute, according to one possible reading of it, is apparent from the defenders' admissions. These are to the effect that on either side of the levelcrossing there is a large gate across the carriageway, which is kept locked except when required, to be open for vehicles, &c., that on either side of the level-crossing there is a small wicket gate for foot-passengers, that a gatekeeper who resides at the crossing attends to the opening and closing of the large gates, and that the wicket-gates are never kept locked or fastened but may be used by foot-passengers at any time. It is also implied in the defenders' case that there is no duty laid upon the gatekeeper to warn foot-passengers of the approach of trains, and it is not said that they gave him any directions to that effect. On the pursuer's reading of the section to which I have referred these admissions are sufficient to convict the defenders of a breach of a statutory duty. They say that the defenders ought to have kept the wicket-gates as well as the carriage gates locked to prevent foot-passengers being exposed to any danger by the passing of carriages along the railroad, and to have had a watchman to open and shut these gates for foot-passengers in the same way as the defenders admit that they are bound to do in the case of horses and carriages. Strictly speaking, I think the record raises no such case, but, of course, it might be easily amended, and as I had the benefit of a full argument I shall express my view upon it.

In my opinion section 1 of the 1839 Act has no application to the railway crossing in question. That crossing was authorised by an Act which is to be treated as a public Act (section 54), and which expressly incorporates the Railway Clauses Act. Moreover, section 51, where certain public Acts are enumerated whose provisions are to be enforced in respect of the authorised railway so far as applicable, seems by its omission to refer to the 1839 Act impliedly to exclude it. The reason of this is apparent when the clauses of the 1845 Act are adverted to, because that Act contains a series of sections regulating the crossing of turnpike roads or public carriage roads on a level. I refer specially to sections 39, 40, and 52. These sections deal with exactly the same subject-matter as the 1839 Act, namely, the crossing of roads by a line of railway, and while they provide for gates being erected and kept closed so as to prevent the passage of horses and vehicles except when it is safe to do so, they contain no corresponding provision applicable to foot-passengers. By section 52 the only obligation put upon the railway company in the case of a footway is to have stiles on each side of the railway, and although this section is not applicable to public carriageways, which are dealt with in section 40, the practice of railway companies seems to have been to combine with locked carriage gates, which are enjoined for the protection of vehicular traffic, a stile at each side of the footway for foot-passengers which acts as a warning to them that they are approaching a dangerous place.

The pursuers' counsel was unable to refer me to any case in which his contention was directly upheld. The nearest approach is the case of Gilchrist, 12 D. 979, where some observations were made—especially by Lord Mackenzie—which so far support the pursuers' construction of the 1839 Act. The decision itself, however, did not involve the question here raised, because the defenders in that case had neglected the clear statutory duty incumbent upon them of providing locked gates across the carriage road, and the absence of such gates was held to imply that the line might be safely crossed. On the other hand, there are several English decisions, such as the cases of Stubley, L.R., 1 Ex. 13, and Cliff, L.R., 52 B. 258, which do not appear to me to be consistent with the application of the 1839 Act, or at all events of the construction put upon it by the pursuers. I am, therefore, unable to affirm the contention that the defenders committed a breach of a statutory duty in

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not having the wicket-gates for passengers constantly locked unless at times when it was safe for the public to cross.

The case at common law, however, remains. It is settled law that a railway company is bound to take all reasonable precautions to protect the public who are entitled to make use of a level-crossing against the danger which is necessarily incident to such use. What such precautions are depends upon the special circumstances of each case, and in this case the precautions which the pursuers say the defenders ought to have taken were to have had the wicket-gates closed when a train was due or nearly due to pass the level-crossing, and a servant stationed at the crossing whenever a train was due or almost due to pass, whose duty it should have been to have warned foot-passengers against crossing the line.

“In the two cases I have already referred to it was authoritatively decided that where there is a clear view of the line on each side of the crossing for a considerable distance, so that a passenger taking reasonable care of his own safety could see an approaching train in ample time to avoid being run down by it, there is no general obligation to keep the stiles locked, or to station a watchman in order to warn members of the public against crossing. Here it is not said that an unobstructed view of the railway could not be obtained on both sides from the wicket-gates; nor is there any averment that a precaution, the omission of which has sometimes been held to constitute negligence, namely, that the engine-driver should sound his whistle before approaching the level-crossing, was omitted in this case. The special circumstances founded on, however, are (1) that the crossing is situated at the foot of an incline, and that engines in approaching invariably shut off steam, and therefore do not make so much noise as usual; (2) that the working of an air-fan in the neighbourhood had a tendency to prevent the deceased from hearing a whistle or the approach of the train; (3) that the night was a dark and foggy one; and (4) that the crossing had become much more frequented of recent years than at the time when the Act was passed. In my opinion, none of these circumstances are such as to throw a duty upon the defenders to provide a watchman. No person who approaches a level-crossing is entitled to rely entirely upon his hearing to warn him of the approach of danger. He is bound to use his eyes as well, and if there is nothing to obstruct his vision, and he nevertheless walks across a level-crossing just at the time when a train is approaching, his death must be attributed to his own negligence. That the night was dark is of no consequence, because it is not alleged that the engine was not lighted in the usual way; and the vague averment that it was foggy as well conveys no information to the mind, unless coupled with a statement as to the distance at which the lights of the engine would have been visible to a person of ordinary eyesight. Besides, the existence of fog ought to have made the deceased all the more careful, and I do not find it suggested in any of the cases that the condition of the weather at the time forms one of the special circumstances which may throw a duty upon the railway company of providing a watchman to warn passengers or some equivalent precaution. I therefore reach the conclusion that the pursuers have not stated a relevant case for inquiry; and that Hendrie's death must be attributed solely to his culpable failure to look out for his own safety.”

The pursuer reclaimed, and argued—Section 1 of the Highway (Railway Crossings) Act 1839 (2 and 3 Vict. cap. 45) for the safety of “persons” and others using a level-crossing, applied to the level-crossing where the deceased was killed. This section, unlike section 3, which had been repealed—Statute Law Revision Act 1874 (37 and 38 Vict. cap. 96)—had not been expressly repealed, and repeal by implication was out of the question. The Act of 1839 was a Highway Act providing for the protection of the public, and could not be held to be impliedly repealed by a Railway Act. The Act which authorised the level-crossing incorporated the Railway Regulation Act 1842 (5 and 6 Vict. cap. 55), which recognised (section 9) that section 1 of the Act of 1839 was still in force. Further, the provisions of the Railways Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 33) with regard to level-crossings—sections 39, 40, and 52—if they applied, were not inconsistent with the obligations imposed by the Act of 1839— Gilchrist v. Ballochney Railway Company, June 8, 1850, 12 D. 979. The defenders were therefore in breach of a statutory duty and were liable— Woods v. Caledonian Railway Company, July 9, 1886, 13 R. 1118, 23 S.L.R. 798. (2) In any event, the defenders were liable irrespective of breach of statutory obligations. A railway company was bound to do everything reasonably necessary to secure the safety of persons using a level-crossing— Cliff v. Midland Railway Company, 1870, L.R., 5 Q.B. 258, per Mellor, J., at p. 261, Lush, J., at p. 266; Grant v. Caledonian Railway Company, December 10, 1870, 9 Macph. 258, 8 S.L.R. 192; Ireland v. North British Railway Company, October 31, 1882, 10 R. 53, 20 S.L.R. 35. The particular precautions necessary to secure the safety of persons using the level-crossing depended on the circumstances— Bilbee v. London, Brighton, and South Coast Railway Company, 1865, 34 L. J. (N.S.), C.P. 182; and it was for the jury to say what these precautions should be— Toal v. North British Railway Company, 1908, S.C. (H.L.) 29, 45 S.L.R. 683. The increased traffic on the level-crossing here, and the silence of trains approaching it, imposed a special duty on the defenders to lock the gates when a train was approaching and to station a man at the crossing to warn foot-passengers. If the defenders had not taken the reasonable precautions necessary in the circumstances it was no answer to say that the deceased might have seen the

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train approaching— North-Eastern Railway Company v. Wanless, 1874, L.R., 7 E. and I. App. 12. In any event, the question whether there was contributory negligence was for the jury— James v. Great Western Railway Company, 1867, 36 L.J. (N.S.), C.P. 255, per Montague Smith, J., at p. 256; Smith v. South-Eastern Railway Company, [1896] 1 QB 178, per Esher, M.R., at p. 182; Wakelin v. London and South-Western Railway Company, [1896] 1 Q.B. 189, per Brett, M.R., at p. 192; Thomson v. North British Railway Company, November 17, 1876, 4 R. 115, 14 S.L.R. 97. Accordingly, the pursuer had averred a relevant case for inquiry and was entitled to an issue.

Argued for the defenders (respondents)—The Act of 1839 was excluded by the incorporation of the Railways Clauses Consolidation (Scotland) Act 1845— Manchester, Sheffield, and Lincolnshire Railway Company v. Wallis, 1854, 14 Scott's C.B.R. 213, per Jervis, C.J., at p. 220. The latter Act was the sole measure of the defenders' statutory obligations— Cliff v. Midland Railway Company, cit., per Lush, J., at p. 261. The existence of wicket gates for the convenience of foot-passengers was not a breach of statutory obligations— Charman v. South-Eastern Railway Company, 1888, L.R. 21, Q.B.D. 524, per Lindley, L. J., at p. 531; and the defenders were therefore not liable for the death of the deceased. (2) In any event the pursuer had not stated any relevant case at common law. There was nothing inconsistent in the pursuer's averments with the deceased's having been able to see the train approaching had he taken the ordinary precaution of looking along the line before he attempted to cross, and the pursuer's case was therefore irrelevant— Ellis v. Great Western Railway Company, 1874, L.R., 9 C.P. 551; Davey v. London and South-Western Railway Company, 1883, L.R., 11 QBD 213; M'Kenzie v. Magistrates of Musselburgh, July 2, 1901, 3 F. 1023, 38 S.L.R. 745.

At advising—