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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> O'Keefe v. The Lord Provost and Magistrates of Edinburgh [1910] ScotLR 50 (09 November 1910)
URL: http://www.bailii.org/scot/cases/ScotCS/1910/48SLR0050.html
Cite as: [1910] SLR 50, [1910] ScotLR 50
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
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v.
Facts:
A woman slipped on a piece of ice which had formed on the pavement near a fountain, and fell, sustaining fatal injuries, Her husband and certain
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of her children raised an action against the Magistrates of the City, who had sole control of the fountain and the cleansing of the streets, in which they averred that it was the defenders' business so to regulate the fountain as to prevent an overflow, and that the ice must have been caused by an overflow. Held—rev. the decision of the Lord Ordinary (Dewar)—that the pursuers' averments were irrelevant.
Per the Lord President — “In such a case I can only imagine negligence coming under one or other of two heads—either that there was some structural defect in the fountain, which made overflows probable, or that the fountain having for some temporary or fortuitous cause overflowed, this dislocation of the ordinary arrangements had been brought to the knowledge of the authorities or had existed for such a length of time that they ought to have known, and that they had failed to remedy the temporary defect.”
Statement of law by Baron Pigott in Shepherd v. Midland Railway Company, 25 L. T. 879, approved.
Patrick O'Keefe, husband of the deceased Ann Carty or O'Keefe, who died on 6th March 1910, and Mary Agnes O'Keefe and others, certain of his children, raised an action against the Lord Provost, Magistrates, and Council of the City of Edinburgh for damages for the death of Mrs O'Keefe.
The pursuers averred, inter alia—“(Cond. 2) The defenders have through their officials complete control over public fountains, monuments, and streets within the bounds of the city of Edinburgh. The defenders are proprietors of the fountain commonly known as ‘Bobbie's Fountain,’ which is situated at the junction of the following streets, viz.—Candlemaker Row, Chambers Street, George IV Bridge, Forrest Road, and Bristo Street. The fountain has an upper and a lower basin, and when there is too large a flow of water it flows over the one or the other of the basins, and forms a narrow stream across the pavement in Candlemaker Row. The said fountain is situated immediately at a sharp, dangerous, and dark corner between George IV Bridge and Candlemaker Row, and in Candlemaker Row just at the fountain there is a steep decline. The water when overflowing from said fountain runs across the pavement into the gutter on the north side of Candlemaker Row. (Cond. 3) On 29th January 1910 the deceased Ann Carty or O'Keefe was proceeding from Chambers Street intending to go down Candlemaker Row to the Grassmarket, and on turning the corner at said fountain, at or about 12 noon on that day, she slipped upon a piece of ice about one inch in thickness, and two or three inches or thereby in breadth, as she was passing said fountain in Candlemaker Row. This ice upon which she slipped was formed from water which had overflowed from said fountain. Said ice covered a strip of said pavement, and was caused by an overflow of water from said ‘Bobbie's Fountain.’ This overflow was due to the water in said fountain being imperfectly regulated by the defenders. It was the duty of the defenders to properly regulate the flow of water in said fountain so that there would be no overflow, but this they did not do, and thus caused said accident to, and subsequent death of, said Mrs O'Keefe. She fell upon her back, her side striking the lower of said two basins, and two of her ribs were broken by said fall. Through slipping and falling as aforesaid she also sustained and suffered injury to the back of her head.… (Cond. 4) The said accident was due to the fault of the defenders. The footpath in Candlemaker Row was in a dangerous condition owing to the ice, which defenders or their servants had negligently allowed to form on said pavement. On said 29th January 1910 the streets were dry. The rest of the pavement in Candlemaker Row and immediate vicinity was free from ice, and the deceased did not and could not with reasonable care have seen said strip of ice, and had said flow from said fountain been properly regulated no ice would have formed at the place where the said Ann Carty or O'Keefe met said accident, which resulted in her death. The defenders have sole control of the cleansing and safety of the streets, but they neglected to take the usual precautions to keep this place safe to foot-passengers. It was their habit to strew this place with ashes whenever said fountain overflowed and the pavement was covered with ice, but on said 29th January 1910 they negligently failed to do so until after the said accident happened, although there was ice at said fountain as above mentioned. The pursuer's fall was caused by the said defective and dangerous condition of said pavement, and it was the duty of the defenders to safeguard foot-passengers using said pavement in Candlemaker Row opposite said fountain by properly regulating the flow of said fountain and preventing it from overflowing, or by strewing said pavement with cinders when there was ice thereon, or by removing said ice when formed by an application of salt. One or other of these precautions had been taken prior to said accident on other occasions by defenders when ice had formed through the overflow from said fountain. None of these precautions did the defenders take prior to the hour of said accident on said 29th January 1910, although it was their duty and custom to do so, and thus they caused the accident to and death of the said Ann Carty or O'Keefe on said 29th January 1910. After said accident a servant of defenders strewed the pavement at the spot where the said accident happened with ashes. This precaution would have prevented said accident, but defenders failed to take it in time. They are thus solely to blame for said accident.…”
The defenders, who admitted that they had full control over the fountain in question, and sole control of the cleansing of the streets, pleaded, inter alia, that the pursuers' averments were irrelevant.
On 18th October 1910 the Lord Ordinary
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( Dewar) approved of an issue in ordinary form for the trial of the cause. The defenders reclaimed, and argued — The pursuer's averments were irrelevant, for there was no averment either that the defenders knew, or ought to have known, of the danger — Thomson v. Greenock Harbour Trustees, December 10, 1875, 3 R. 1194, 13 S.L.R. 155; Keeney v. Stewart, 1909 S.C. 754, 46 S.L.R. 546—or that the structure of the fountain was defective.
Argued for respondents—The averment that the defenders failed to properly regulate the flow of the fountain was a good averment of negligence. They referred to Dublin United Tramways Company v. Fitzgerald, [1903] AC 99; and Nelson v. County Council of Lower Ward of Lanark, December 11, 1891, 19 R. 311, 29 S.L.R. 261.
The facts out of which the action arises are alleged to be that the deceased lady, the wife of the principal pursuer, and the mother of the rest, slipped on a piece of ice which had formed on the foot-pavement on the north side of Candlemaker Row in the immediate vicinity of “Greyfriars Bobbie's Fountain.”
It is impossible to maintain that a mere averment that a person in Edinburgh slipped in the month of January on a piece of ice on the pavement is tantamount to an averment of negligence on the part of the road authority, that is to say, the Town Council. It would be putting upon them a duty to keep every street in Edinburgh free of ice. The only thing the pursuers do say is that the defenders were proprietors of the fountain, that it was their business so to regulate it as to prevent an overflow, and that the ice must have been formed as the result of an overflow. That does not follow, for it might have been caused by someone drawing water and spilling some of it. Even supposing it was caused by an overflow, it might have been due to causes over which, for the moment, the authorities had no control. I do not say that there would not be liability for letting a fountain get into such a condition as to cause danger to the public, and in estimating what the danger is you must take into account the ordinary weather conditions, one of which is frost.
In such a case I can only imagine negligence coming under one or other of two heads—either that there was some structural defect in the fountain which made overflows probable, or that the fountain having for some temporary or fortuitous cause overflowed, this dislocation of the ordinary arrangements had been brought to the knowledge of the authorities or had existed for such a length of time that they ought to have known, and they had failed to remedy the temporary defect. There is a case ( Shepherd v. Midland Railway Company, 25 Law Times 879) decided in England about ice on a railway platform, in which Baron Pigott said—“The question whether there was any evidence of a neglect of duty is a question of degree. If there had been only a very small piece of ice in a place where the railway servants had no opportunity of seeing it, there may have been no negligence; but when we have a layer of ice three-quarters of an inch thick and extending half across the platform, and that too at three o'clock in the afternoon, there was plenty of opportunity for them to have seen it and to have removed it.” It was suggested in the course of the argument in that case that if a passenger had thrown a piece of orange peel from a train on to the platform and a person had slipped on it, the company would not be liable on the ground of negligence; and Baron Pigott remarked—“They might be if the orange peel had been allowed to remain a long time upon the platform without being swept up.” I agree with that statement of the law. The pursuers here do not aver either a structural defect nor a failure on the part of the defenders to deal with a temporary overflow, the existence of which either was or ought to have been known to them; they only make the naked averment that the defenders did not so regulate the fountain as to prevent it overflowing, and that is, in my opinion, insufficient.
We have to be satisfied that there is a relevant case before we send it to a jury, as was expressly laid down by Lord Robertson in the recent case of Toal v. North British Railway Company ( 1908 S.C. (H.L.) 29), where the judgment of this Court disallowing an issue was reversed on the ground that in that particular case there was a sufficient averment.
I think that the pursuers here have stated no relevant case, and that the issue should not be allowed.
The Court recalled the Lord Ordinary's interlocutor and dismissed the action.
Counsel for Pursuers (Respondents)— M'Kechnie, K.C.— A. A. Fraser. Agent— P. Maclagan Morrison, Solicitor.
Counsel for Defenders (Reclaimers)— Cooper, K.C.— W. J. Robertson. Agent— Thomas Hunter, W.S.