Scottish Court of Session Decisions

On 23rd December 1907 Henry Cass, insurance manager, 2 Eildon Street, Edinburgh, as tutor and administrator-in-law of his son William Henry Duncan Cass, who was run over and seriously injured by a cable car in Inverleith Row on 16th November 1907, raised an action of damages against the Edinburgh and District Tramways Company, Limited.

The pursuer averred that the accident to his son, who was four years and eight months old, was due to the defective construction of the car, which was one of eight in use in Edinburgh, fitted with stairs of the type known as reverse; that “said stair is built on a dangerous and obsolete system. It starts from the left front of the platform, and in gradually rising to the level of the top of the car it passes obliquely in front of the driver of the car in such a manner as to completely obscure his vision to the front and left front of the direction in which the car is travelling. Further, the said car, like all the other cars used by defenders, was provided with a guard in front, which is intended to prevent any obstruction which may be encountered by the car on the street from passing under the car or its wheels. The guard on the car, No. 127, was quite out of date and ineffective for that purpose, for it allowed the boy's legs to pass freely underneath it, and so allowed the wheels to pass over them.… Further, the regulations and bye-laws of the Board of Trade relating to defenders' tramways, provide that every car shall be so constructed as to enable the driver to command the fullest possible view of the road, and also that every car shall be fitted with a suitable lifeguard.… The said car was so constructed as to prevent the driver from commanding the fullest possible view of the road, and was not fitted with a suitable lifeguard; and defenders, in continuing to use said car as presently constructed, acted knowingly or negligently in violation of said regulation.”

The defenders denied that the accident was due to fault on their part, and explained that the car was duly licensed by the city authorities.

The defenders further averred—“The said accident was due to, or was materially contributed to, by either ( a) the fault of the pursuer's son in suddenly placing himself right in front of the car; or ( b) to the fault of his parents in allowing a child of such tender age to wander unattended in a public street of the city.”

On 6th March 1908 the Lord Ordinary ( Guthrie) disallowed the issue proposed by the pursuer and allowed a proof.

The pursuer reclaimed, and on 23rd May 1908 the Court adhered and remitted to the Lord Ordinary [see ante ut supra].

Proof was thereafter led, the import of which sufficiently appears from their Lord—ships' opinions infra.

On 20th August 1908 the Lord Ordinary assoilzied the defenders.

Opinion.—“If damages were given in this distressing case they would obviously

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be large. But I am not able to find that the damage suffered by the poor boy injured has been proved by the pursuer to have been caused by the fault of the defenders; and in any case I think the defenders have proved contributory negligence on the boy's part.

Neither Mr Cass nor his witnesses, at the time of the accident or in the witness box, blamed William M'Donald, the driver of the car. If any driver could have been relied on to see the boy in time to save him, M'Donald would have seen him. He struck me as a man likely not only to be careful but hyper-conscientious in the discharge of his duty.

The accident is attributed by the pursuer to the construction of the car staircase in its effect on the leftward vision of the driver; and it is said that the terrible injuries received, resulting in the amputation of both legs at or below the knee, would have been avoided had a ‘Tidgewell guard’ been used.

I. Staircase—The staircase known as the ‘reverse,’ used on this and other seven cars, all running regularly on the Golden—acre route and occasionally on other routes, was passed originally by the Board of Trade and annually by the local authority. During the seventeen years in which the cars have been running, on a route usually one of the quietest but very busy during sports, there has been no accident due to the defect now alleged; nor has any difficulty been experienced by the men working the traffic; nor any complaint made by anyone of the alleged defect.

On the other hand, none of the cars built for Edinburgh, subsequent to the supply of these eight, have been fitted with similar staircases, all other cars having staircases (from their construction less convenient and less safe for outside passengers ascending and descending, but from their situation more convenient, through their increased platform area, for heavy traffic and in emergencies) which less interrupt the driver's leftward view, while shutting him off from the side view, which is important in passing other wheeled traffic. Further, where reverse staircases are used on other systems, in connection with electric traction, the driver has a better leftward view than in the eight Edinburgh cars, because he stands two feet nearer the front of the car. Lastly, the Board of Trade has said that the use of reverse staircases should be avoided. But it is not proved that the Board of Trade's objection to reverse staircases is due to their effect in narrowing the leftward vision of the driver. It seems as probably caused by their effect in congesting ingress and egress.

The pursuer's and defenders' witnesses differ as to the amount of interference of the staircase in question with the driver's vision to his left side. I cannot accept the pursuer's witnesses' figures, because they are based on two wrong assumptions. They assume, First, that the driver occupies a position to the left of the centre line of the car, whereas he stands 6 inches to the right of that line; and Second, they assume that, from every point where the driver's face would be invisible to an outsider, that person would be totally invisible to the driver, whereas it is proved that, although the driver may not see the face of the man in the street, he is yet able to see other parts of his person. The defenders' witnesses' figures, which I accept, are taken from observations made on the street and experiments with stationary and moving cars. The result is, that if a person is on the pavement, as this boy was, to the left of the car, at a distance of 9 feet from the nearest car rail, he is visible, in whole or in part, to the approaching car driver till the car is within 15 feet of the point on the car line opposite the person on the pavement. During the progress of the front of the car along the next 5 feet, the intervening staircase makes the boy, whether on the pavement or crossing towards the car rails, totally invisible to the car driver. When the car has traversed these 5 feet, the boy then becomes partially visible to the driver. The risk, therefore, only arises in the case of a person who when the car is 15 feet away starts to go across the intervening 9 feet and attempts to cross in front of the car, because when the car driver again catches sight of him 10 feet off, it may be impossible for the person to cross in time, and impossible for the driver to stop the car so as to prevent accident.

That being the risk caused by this staircase, the question is whether perseverance in its use constitutes fault on the part of the defenders leading to the accident? In my opinion it does not. I adopt the views of the defenders' witnesses M'Donald, the driver, Mr Shepherd, the defenders' manager, and Mr Bennett, civil engineer. M'Donald said—‘The place that is obscured is so close to the car that no one would think of crossing. If they did, it would be a very dangerous thing to do. I never found any person attempting such a thing.’ Mr Shepherd said—‘There is no obstruction that would impede the driver's sight of any person taking ordinary care;’ and Mr Bennett said—‘The fact that there is this obscured portion, as the car is being driven along, is not in my view any danger to the public on the footway, because it is so near that no person in his senses would attempt to cross in front of the car.’ A car going at 9 miles an hour goes about 13 feet in a second. That is to say. it will cover the 5 feet of obscurity in less than half a second, and the whole 15 feet above referred to in a second and a quarter. It could not be represented as a risk that should reasonably have been anticipated and provided against in the construction of the car that a person would act on the footing that a second and a quarter would enable him to cross not only the 9 feet between the pavement and the nearest car rail, but also the 5 feet between the rails.

(2) Guard.—It is enough to say that the defenders have proved that, whatever the merits of the Tidgewell guard, it cannot be applied to cable cars on account of the gripper arrangements.

II.— Contributory Negligence.—Suppose

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that the defenders were in fault in continuing to use the staircase in question (although originally passed by the Board of Trade, and found safe in actual working during a course of seventeen years) owing to the existence of a defect which had never been suggested by anyone, either on theoretical or practical grounds, and that they were bound to have adopted such a staircase as is shown on the photograph with all its risks to ascending and descending passengers, the defenders plead contributory negligence, and I am of opinion that the plea is well founded.

Whether we accept the pursuer's figures that the driver would lose sight of a person on the pavement 9 feet from the nearest rail when 16 yards away from him, or adopt the defenders' view that he would only lose sight of him when he came within 5 yards, it appears clear that a person, seeing the car approaching at a steady speed, who left the pavement, without necessity and without invitation, and attempted to cross in front of the approaching car, was not acting with ordinary care and caution and took the risk of what might happen. In the one view it was impossible to cross in safety; in the other view, if it were done in safety, it would be the feat of an athlete. But if the person crossing did not look to see whether a car was approaching, his contributory negligence would be equally clear.

But the person crossing in this case was a child of four years and eight months. Clearly it was not safe for so young a child to be alone crossing a tramway line where cars, travelling at a speed of nine miles an hour, pass every three minutes. I impute no blame to the parents. When his father gave him, at his request, a penny to buy nuts, he naturally assumed he would get them, as usual, at Mrs Barr's shop, which is on the same side of Inverleith Row. Had the parents known that the boy intended to go alone to Lumsden's, 240 yards away, near the corner of Inverleith Terrace, which involved crossing and recrossing Inverleith Row, they would not have allowed him to go unattended. But it is not necessary to prove blame on the part of the guardian in order to escape liability. Children will disobey all orders, and break all rules, and neglect all warnings. But if they do so, in such circumstances as the present, the law does not consider it fair that others should suffer.

Apart from the question of the parents, I think, young as the boy is, he himself was guilty of contributory negligence. We are told he is a distinctly intelligent child; he has been warned to keep out of the way of cars and to watch carefully to see when he crosses a street that there is no car coming; and he has been told of the danger of going across the car line when out by himself; and thus, young as he was, he was not incapable of the simple kind of contributory negligence alleged in this case. Notwithstanding, absorbed, poor chap, in the little purchase of nuts made on his own hook, without looking whether any car was approaching and too absorbed to hear its noise (the three eye-witnesses, White, Milne, and Jamieson, agree in this) he walked rapidly straight, or almost straight, across the road right against, if not in front of, the approaching car; the front wheel went over his legs and he was thrown out 2 feet on to the roadway by the slipper drag which the carman instantly applied the moment he saw the nursemaid Milne's signal. When they differ, I prefer Miss Milne's evidence, which was given with intelligence and distinctness, to that of the boys, White aged twelve, and Jamieson aged ten. The case is in essentials the same as if a grown person, absorbed in a book, were to cross a thoroughfare without looking up or down for approaching traffic. My impression is that the boy came rapidly out from the pavement when the car was some 12 feet off the place where he left the pavement, and that the dashboard, which is 5 feet from the rail, was itself sufficient to hide him from the driver's view.

I must, therefore, as in the question of legal liability for fault on the one hand, and contributory negligence on the other, grant absolvitor with expenses.”

The pursuers reclaimed, and argued—(1) Where the driver of a vehicle ran down a pedestrian in broad daylight there was a strong presumption that the driver was in fault— Clerk v. Petrie, June 19, 1879, 6 R. 1076, 16 S.L.R. 626; Grant v. Glasgow Dairy Company, December 1, 1881, 9 R. 182, 19 S.L.R. 155. A driver who was keeping a proper lookout must have seen the boy but for the obstruction caused by the stair. The regulations passed by the Board of Trade in pursuance of the Tramways Act 1870 (33 and 34 Vict. cap. 78), section 64, required that the car be so constructed as to enable the driver to have the fullest possible view of the road. The evidence established that the use of the car in question was in violation of that regulation. The driver never saw the boy. In these circumstances the maxim res ipsa loquitur applied, and the accident must be held to be due to the fault of the defenders. The certificate by the local authority did not help the defenders. The local authority only considered the comfort and safety of passengers. The common law liability of the defenders was preserved by section 55 of the Tramways Act 1870. (2) Contributory negligence had not been established. A child so young was probably incapable of contributory negligence— M'Gregor v. Ross & Marshall, March 2, 1883, 10 R. 725, 20 S.L.R. 462; Gibson v. Glasgow Police Commissioners, March 3, 1893, 20 R. 466, 30 S.L.R. 469. In any event the same standard of care was not to be expected from a child as from a grown-up person— Campbell v. Ord & Maddison, November 5, 1873, 1 R. 149, 11 S.L.R. 54—and a driver was bound to take that fact into account— Auld v. M'Bey, February 17, 1881, 8 R. 495, 18 S.L.R. 312. There was certainly no negligence in the child's being on the street, and it was the driver's duty to avoid him— Martin v. Wards, June 15, 1887, 14 R. 814, 24 S.L.R. 586. The mere failure to look whether a car was approaching was not contributory

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negligence in a person of advanced age— per Lord Gifford in Clerk v. Petrie, cit.—and a higher standard of care would not be demanded from a young child. The case of Frasers v. Edinburgh Street Tramways Company, December 2, 1882, 10 R. 264, 20 S.L.R. 192, was distinguishable. The boy who was injured in that case was older and attempted to rush across the street in front of a car which he saw. In any event contributory negligence was no answer if the defenders could have avoided the accident by the exercise of ordinary care and diligence— per Lord Penzance in Radley v. London and North-Western Railway Company, (1876) L.R., 1 A.C. 754, at p. 759.

Argued for the defenders (respondents)—(1) The pursuer had completely failed to prove fault on the part of the defenders. The question was not whether another type of stair would be better than the “reverse,” but whether the use of the latter made an accident a thing reasonably to be contemplated, and that certainly had not been established. Any stair involved a “blind angle,” and the car in question was designed under competent superintendence, licensed after yearly inspection by the magistrates, and had run for twenty years without accident. The car was proved to afford the driver the fullest possible view of the road consistent with the presence of a stair. The “blind angle” prevented a view only of a pedestrian who was so near the car that it would be utterly unreasonable for him to attempt to cross in front of it. (2) In any event the child was guilty of contributory negligence. There was no defined age at which a child became guilty of contributory negligence. The question was always one of fact— Campbell v. Ord & Maddison, cit. It was proved here that the child was of more than average intelligence, and that he well knew the danger involved in crossing the tramway lines. He was therefore capable of negligence, and in attempting to cross the street without looking to see whether it was clear he was undoubtedly guilty of negligence— Frasers v. Edinburgh Street Tramways Company, cit. The dictum of Lord Penzance in Radley v. London and North-Western Railway Company, cit., had no application to the present circumstances.

At advising—