Scottish Court of Session Decisions

On 4th July 1910 William Bastable, switch-back proprietor, Falkirk, pursuer, brought an action against the North British Railway Company, defenders, for payment of £325 in respect of damage done to a steam switchback railway belonging to him owing to its having come in contact with a smoke-board suspended from a bridge on the defenders' railway. The contract under which the goods were carried was a special (owner's risk) one, under which the pursuer, in respect of a reduced rate, agreed to relieve the defenders “from all liability for loss, damage, misdelivery, delay, or detention, except upon proof that such loss, damage, misdelivery, delay, or detention arose from wilful misconduct on the part of the company's servants.”

With regard to the conveyance of merchandise, the rules and regulations of the company contained the following provisions:—… “ Dimensions of Loads.—These must not exceed those given in the Railway Clearing House Classification Book for the line or lines over which they have to pass, and all loads must be gauged when there is any reason to doubt that they are not within the dimensions.… Threshing Machines, Agricultural and Traction Engines, and all Engines and Machines of a like kind must be passed under the gauge.” …

The pursuer pleaded, inter alia—“(4) Said damage having been caused through the wilful misconduct of defenders' servants, pursuer is entitled to decree as craved.”

The defenders, inter alia, pleaded—“(2) The goods having been carried by the defenders under the special contract produced, the defenders are not liable to the pursuer except upon proof that the damage arose from wilful misconduct on the part of the defenders' servants. (3) The damage not having arisen from wilful misconduct on the part of the defenders' servants, the defenders ought to be assoilzied.”

On 27th December 1910 the Sheriff-Substitute ( Moffatt), after a proof, pronounced the following interlocutor:—“ Finds in fact (1) that on 1st June 1910 the pursuer, who is owner of a steam switchback railway with which he visits shows, fairs, and similar functions all over the country, by special contract signed by himself contracted with the defenders to convey this switchback plant from Alva Station to Falkirk (Grahamston) Station, both on the defenders' line; (2) that the said plant was loaded upon defenders' trucks, which trucks were attached to a passenger train which left Alva in the afternoon of the said 1st of June; (3) that the trucks were not put through the gauge at Alva Station; (4) that the stationmaster at Alva saw the trucks, considered whether it was necessary that they should begauged, and decided that it was not necessary; (5) that the train arrived safely at Grahamston Station, having passed without mishap through a bridge named the Hope Street Bridge, a little to the west of the station, and the trucks were thereafter detached and shunted into a siding; (6) that in order to reach the siding the trucks had again to pass twice under Hope Street Bridge; (7) that on passing for the last time under Hope Street Bridge, on the northmost line, the funnel of the pursuer's

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engine caught a smoke-board which depended from the bridge; (8) that the bridge is lower at the north end than at the south end; (9) that the truck on which the engine was loaded was loaded too high at Alva Station; (10) that by the funnel coming in contact with the smoke-board the pursuer's plant was seriously damaged; (11) that the pursuer has suffered damage to the extent of £100 sterling; (12) that the special contract under which the goods were conveyed contains, inter alia, a clause freeing the defenders from liability for damage to the goods except upon proof that such damage arose from wilful misconduct on the part of the defenders' servants: Finds in fact and in law that there is no proof of wilful misconduct on the part of the defenders' servants: Finds in law that the defenders are not liable in reparation to the pursuer: Therefore repels the pursuer's pleas-in-law: Sustains the second and third pleas-in-law stated for defenders, and assoilzies the defenders.”

Note.—[ After narrating the facts]—“There can, I think, be no doubt that there was fault and negligence on the part of the defenders' servants; in fact I think I might say that there was gross negligence. To allow very highly loaded waggons to leave Alva Station without passing them under the gauge appears to me to amount to neglect of duty of a very serious kind, especially when one remembers that these waggons were to be attached to a passenger train. Of course, with that aspect of the matter, i.e., the safety of a passenger train, I have nothing to do in this case, which is only concerned with the defenders' duty to the pursuer's property in their care; but one would imagine that the fact of the waggons going as part of a passenger train would have made the defenders' servants at Alva very particular. The pursuer and his son state in their evidence that the pursuer asked a railway porter at Alva if they were not going to gauge the trucks. They are not able to identify the porter, and both porters employed at Alva deny that they were so interrogated. I am inclined to believe the pursuer and his son, principally because of their saying that the porter said it was too much trouble, as the gauge was at the other side of the railway from where the waggons were and there was no engine to shunt them. This was the case. The pursuer or his son could hardly have invented this statement. It is curious that none of the railway employees-porters, stationmasters, or guards—should have had any doubts about the loads safely passing the bridges on their journey, when clearly it was only a question of an inch or two. At Alva I think the railway employees were lulled into a feeling of false security by the fact that the things had come to Alva from Dunblane in safety, passing under several bridges on the way. But of course it is the lowest bridge that is the important one. This load might perhaps have travelled all over Scotland for all I know and never come to harm had it not been shunted at Grahamston. Be the explanation of the carelessness what it may, I think it was clearly the duty of the railway servants to have passed the trucks under the gauge. They were manifestly very highly loaded; above all, they did stick at Grahamston Bridge and cause an accident. Had the defenders been carrying the goods under their common law liability or under a contract where they were responsible for the fault or negligence of their servants there could be no doubt of their responsibility. The contract here, however, was a special contract such as is permitted and contemplated by the seventh section of the Railway and Canal Traffic Act 1854 (17 and 18 Vict. cap. 31). It is signed by the pursuer, and it contains a clause setting forth that the pursuer agrees to relieve the defenders from all liability for damage to the merchandise conveyed ‘except upon proof that such … damage … arose from wilful misconduct on the part of the company's servants.’ It also places in the forefront a statement that the defenders have ‘two or alternative rates for the carriage of the … merchandise, at either of which rates the said merchandise may be carried at the sender's option; one, the ordinary rate, when the company take the ordinary liability of a common carrier; the other, a special or reduced rate, when the sender agrees to relieve the company … except upon proof,’ &c., as above. No question of this contract not being ‘just and reasonable’ is raised or could well be raised in this case. The stipulations, although far from being just and reasonable in themselves, are made so by the alternative of common law liability being offered ( Manchester, &c. Railway v. Brown, 1883, L.R., 8 App. Cas. 703; Great Western Railway Railway v. M'arthy, 1887, L.R. 12 App. Cas. 218) and the ordinary rate as distinguished from the special rate is not so high as to be prohibitive. (See opinions of L.P. Inglis in Finlay v. North British Railway, July 8, 1870, 3 Macph. 959, 970; and Lord Watson in Manchester, &c. Railway ( sup. cit.) at p. 716.) The ordinary rate is 25 per cent. higher than the special rate. That does not appear on the face of the contract, but is spoken to in evidence. The pursuer pleads (1st plea-in-law) that he was not aware and was not informed by the defenders that there were two alternative rates for the conveyance of his plant, and that therefore he is not bound by the contract he signed. This is a plea which I think cannot be listened to. In Great Western Railway Company v. M'Carthy ( sup. cit.) Lord Watson said (at p. 234)—“I am willing to assume that these persons never read, or if they did read paid no attention to the terms of the consignment notes.… But it is impossible to say, even on that assumption, that they had not due notice that the appellants (a railway company) were ready and willing to carry their cattle without limitation of liability for a higher rate than that which they were paying. Whether they did or did not take the trouble to inform themselves, they must be taken to have known

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the terms of their own contract; and, if so, they must be taken to have known that the appellants at the time when they contracted did offer to carry the cattle at carrier's risk.’ This judgment applies exactly here, and so the pursuer's first plea-in-law must be repelled. The question then remains, has the pursuer proved that the damage to his goods arose from wilful misconduct on the part of the defenders' servants? I think this question must be answered in the negative. I do not think that the pursuer has proved that the defenders' servants have been guilty of wilful misconduct. ‘Where a railway company agrees to carry at a reduced rate (the contract being bona fide and not colourable) upon condition of being relieved of the ordinary liability for negligence and to be responsible only for the consequences of the wilful misconduct of their servants, it will be for the plaintiff, in an action for injury to the goods carried, to prove more than culpable negligence. There must be evidence of actual wilful misconduct causing the injury’— Glenister v. Great Western Railway, 1873, 22 W.R. 72. The rubric above quoted seems to be a correct statement of the law. As confirming this, reference may be made to the opinion of Lord Alverstone, C.J., in Forder v. Great Western Railway, (1905) 2 KB 532, 535, approving of the definition of wilful misconduct given by Mr Justice Johnson in Ireland in the case of Graham v. Belfast and Northern Counties Railway Company, (1901) 2 I.R. 13. Mr Justice Johnson says ‘wilful misconduct in such a special condition means misconduct to which the will is party as contradistinguished from accident, and is far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail or omit to do (as the case may be), a particular thing, and yet intentionally does, or fails or omits to do it, or persists in the act, failure, or omission, regardless of consequences.’

These being the rules of law, can it be said that the pursuer has proved that the defenders' servants have been guilty of wilful misconduct? The proof does not bear it out. I was at first impressed by the evidence given by the pursuer and his son about the pursuer's request to have the waggons gauged, and I was inclined to think that the railway porters' failure to gauge them when so requested might amount to wilful misconduct. But it seems to me, apart from the slight doubt which I have as to whether this occurred or not, that the evidence of the station-master, Mr Blackwood, is conclusive against the pursuer's contention. Mr Blackwood was the responsible official; it was not to the porters that the pursuer had to look, it was to the station-master. The station-master in his evidence says that he examined the vehicles and came to the conclusion that they did not require to be gauged. I cannot say that I am altogether satisfied with the evidence given for the defenders, but I cannot on the whole see my way to hold that there was any wilful misconduct on the part of any of their servants.

The defenders must therefore be assoilzied.

I have thought it right to make a finding of the amount of damage I think due, in case, should there be an appeal, a different view of the law might be taken as to the responsibility of the defenders. It seems to me that £100 would compensate the pursuer.”

The pursuer appealed to the First Division.

On 6th December 1911 the Court appointed the case to be heard before a Court of Five Judges, and it was so heard on 22nd December.

Argued for appellant—The defenders' failure to comply with the rule as to “dimensions of loads” amounted to wilful misconduct— Hoare v. Great Western Railway Company (1877), 37 L.T. (N.S.) 186; Dobson v. United Collieries, Limited, December 16, 1905, 8 F. 241, 43 S.L.R. 260. Misconduct might consist in ( a) intentional wrong-doing, or ( b) refusal to take proper care, or ( c) reckless conduct without regard to the consequences— Graham v. Belfast and Northern Counties Railway, [1901] 2 I.R. 13; Forder v. Great Western Railway Company, [1905] 2 KB 532; Gordon v. Great Western Railway Company (1881), 8 Q.B.D. 44; Webb v. Great Western Railway Company (1877), 26 W.R. 111; Haynes v. Great Western Railway Company (1879), 41 L.T. (N.S.) 436. What had been done here amounted to wilful misconduct, for the evidence showed that no proper consideration had been given to the matter by the company's servants. Even if they had thought, after looking at the load, that it would pass under the gauge, that only made it all the more necessary to comply with the rule, for the smaller the margin the greater was the misconduct. The evidence showed that this class of goods was always near the maximum, and that being so there was all the more reason why the goods in question should have been passed under the gauge. Where, as here, the matter was doubtful, there was no room for discretion, for the rule was absolute. In such circumstances omission to comply with it clearly amounted to wilful misconduct. The second branch of the rule (viz., that relating to engines) was also applicable, for the engine in question fell within its scope. [Lord Skerrington—If this branch of the rule was never put to any of the witnesses, how can we convict them of misconduct?] Esto that the rule was not put to the station-master, he must be held to have known it. The rule was prima facie applicable, and the onus of showing that it was not, or that it was never observed, lay on the company.

Argued for respondents—Where, as here, the company's servants had considered the matter, they were not liable, for error of judgment did not amount to wilful misconduct— Graham ( cit. sup.) at p. 19; Lewis v. Great Western Railway Company (1877) L.R., 3 Q.B.D. 195;

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Manchester, Sheffield, and Lincolnshire Railway Company v. Brown (1883), 8 A.C. 703; Foster v. Great Western Railway Company, [1904] 2 KB 306. Esto that where the matter was doubtful the rule should have been complied with, it was not so here, for the station-master was never in any doubt; he was confident after measuring it with his eye that it would pass under the gauge. The second branch of the rule was inapplicable, for it did not apply to engines of this class. Even if it were applicable, the pursuer was barred from founding on it, as it was never put to the station-master or even referred to in the proof. In any event it did not affect outsiders, as it was only a domestic rule affecting the relations between the company and its own servants. Breach of such rules did not infer wilful misconduct in questions with third parties.

At advising—