Scottish Court of Session Decisions

Lord President—This is an action of damages at the instance of a lady who met with an accident by being run over by one of the tramway cars belonging to the Edinburgh and District Tramway Company. She did not allege, in her action, any fault on the part of the driver of the car, but her complaint was that the car was not provided, as it ought to have been, with a side-guard filling up the space between the front and the back wheels. She said that the provision of such side-guards was a proper precaution adopted elsewhere, and that the absence of them constituted negligence on the part of the defenders. She averred that if there had been side-guards it would not have been possible for her leg to get under the car. The Tram way Company put in defences in which they admitted that there were no guards. They contended that the side-guard was not a proper contrivance, and that while it might prevent one class of accidents, it courted another, and that there was no negligence in the facts in which she averred negligence to be. But they also said that the real cause of the accident was the pursuer's own actings, in respect that she had simply walked into the car while it was in motion and was so run over. This was denied by the pursuer.

In that state of matters your Lordships upon a former occasion held that there was a relevant case made and sent it for trial to a jury upon the usual issue of fault.

The learned Judge, after hearing evidence, which was directed on both sides to making good the points which I have just mentioned as being in the pleadings, charged the jury—and now I am reading from the statement in the bill of exceptions—“charged the jury to the effect that if they came to be of opinion that the pursuer's carelessness contributed to the accident, they must return a verdict for the defenders, and the question as to their opinion with reference to the propriety of having side-guards or not was immaterial.”

Now the learned counsel for the defenders did not take any exception to that portion of the charge. If that is so, they cannot be heard now to say that that portion of the charge was misleading. It would be possible to argue that, if that sentence which is quoted in the bill of exceptions had been the only thing that the learned Judge said, it might have been misleading, because it would be possible to argue upon the question of what the true meaning of “carelessness” is, and it would be possible to argue upon the true meaning of the words “contributed to the accident”; and it is only after the words “contributed to the accident” that the Lord Ordinary goes on to say that “the question as to their opinion with reference to the propriety of having side-guards or not was immaterial.” But inasmuch as they have not excepted, I think, in accordance with the well-known practice of this Court, we must hold that there was no ambiguity, because these matters had been explained in the other portions of the learned Judge's charge which are not here quoted. And I have no doubt whatsoever that they were so explained; no judge, I am certain, ever charges a jury upon the question of contributory negligence without explaining to them what the true meaning of the word “contributory” is, and I have no doubt it was done here. I may mention here that I think the leading authority upon this matter is the opinion of Lord Young in the case of Woods v. Caledonian Railway Company ( 13 R. 1118). In the same way, I think that the expression “carelessness” must be taken with the evidence that we know was led upon the only point which was alleged, namely, that the pursuer walked into the car.

Now that having all been satisfactorily explained to the jury in a way which one must consider was proper and in accordance with the law, the learned counsel afterwards asked the Judge to add to what he had already said the following:—“That even if they”—the jury—“be of opinion that the pursuer contributed by her fault to the accident which happened”—and again I say that here the words must be taken in their true sense; that is to say, as meaning that she contributed materially to the cause of the accident—“she is not disentitled to recover damages from the defenders if the jury are also of opinion that reasonable care on the part of the defenders, viz., provision of side-guards to the car, would have prevented the accident.” The learned Judge refused that direction, and to that refusal exception is taken.

I am of opinion that the learned Judge very rightly refused that direction, because I think it would have been either a wrong direction or at least a misleading direction. The learned counsel for the pursuer bases his argument on this, that it always comes to be a question of what is the actual causa proxima of the accident, and then he defines the accident here as the loss of the pursuer's leg. “Now,” he says, “I was entitled to maintain to the jury that the actual particular accident, to wit, the loss of the leg, would not have occurred if there had been a side-guard; and if the failure to provide a side-guard is a negligent act, then the loss of the leg is due to that negligent act and to that act alone, and has nothing to do with the question of the pursuer walking into the car, and I did not have an opportunity of pleading this with effect to the jury, because the direction which was asked for was not given.”

I think there are two fallacies in that argument. In the first place, I do not think that the accident, in the strict sense of the word, or rather—because I wish to use what I think is the proper word—the legal wrong for which the pursuer is suing, is the loss of the leg. The legal wrong was

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