Scottish Court of Session Decisions

On 31st December 1909 Thomas M'Caffery, miner, Blantyre, as tutor and administrator-in-law for his pupil child Teresa M'Caffery, aged six, brought an action of damages against the Lanarkshire Tramways Company, Motherwell, in which he claimed £500 in respect of injuries sustained by her through being run over by an electric tram car belonging to the defenders.

The parties averred — “(Cond. 2) On or about 15th November 1909, about 4 p.m., pursuer's said pupil child was crossing Glasgow Road, Blantyre, on her way from school when she was suddenly and without warning knocked down and run over by an electric tram car belonging to defenders and driven by one of their servants, for whom they are responsible, and received serious injuries as after mentioned. The car was at the time travelling eastward upon the line from Cambuslang to Hamilton. The statements in the answer are denied. (Ans. 2) Admitted that on the date referred to, in Glasgow Road, the pursuer's child was, in the circumstances after mentioned, injured by a car belonging to the defenders and driven by one of their servants. Quoad ultra denied. Explained that just as the car was approaching, the pursuer's daughter suddenly rushed out from between a heap of pitch on the highway and a tar boiler which was standing on the south side of the said road, and attempted to cross the road. The defenders' driver directly he saw her appear did all in his power to stop the car and to prevent an accident, but owing to the child's sudden appearance as aforesaid he was unable to prevent the car from coming in contact with her. The sad accident was caused by, or at anyrate was materially contributed to by, the child's own fault. Alternatively the pursuer was in fault in allowing a child of tender years to wander unattended on the road in question, and the accident resulted from his said fault.……….(Cond. 4) Said accident was due to the fault and negligence of defenders' servant, the driver of said car, for whom defenders are responsible. At the time of the accident the driver was driving the car at an excessive rate of speed, and in a careless and reckless manner, and without keeping a proper look-out in front of him, or giving any warning to pursuer's said child of his approach. If the defenders' said driver had been keeping a proper look-out in front of him he would have seen the said Teresa M ‘Caffery, and been able to give her warning by ringing the bell or shouting, and to pull up in time to avoid knocking her down. Further, if the said driver, when he saw the child, had been driving at a proper and moderate speed, and had had the car under control, he would have been able to stop the car in time to avoid the accident. It is believed and averred that when the said driver did perceive the danger of the car running down the child he negligently failed to take proper precautions to prevent the accident by ringing the bell and braking the car in an adequate way, and thus caused said accident, for which defenders are responsible. (Ans. 4) Denied. Explained that the motorman had rung his gong while approaching the tar boiler, and had also the car under his immediate control. Reference is made to answer. 2.”

The Lord Ordinary ( Mackenzie) having allowed an issue in ordinary form the case was tried before the Lord President and a jury on 23rd March 1910. At the conclusion of the pursuer's evidence (the import of which sufficiently appears from his Lordship's opinion, infra), counsel for the defenders asked his Lordship to withdraw the case from the jury on the ground that no evidence of fault on the part of the defenders or their servant had been led. He cited Flood v. The Caledonian Railway Co., November 30, 1889, 27 S.L.R. 127; and Tully v. North British Railway Co., July 17, 1907, 46 S.L.R. 715.

Counsel for the pursuer objected, and argued (1) that he had led evidence sufficient to support a verdict in his favour should such a verdict be returned, and (2) that the course proposed was incompetent. In support of his second contention he referred to Gibson v. Nimmo & Co., March 15, 1895, 22 R. 491, per Lord Young at p. 499, 32 S.L.R. 411, at p. 414.