Scottish Court of Session Decisions

Lord Cullen.—The pursuer alleges that, while she was walking along the platform of the defenders' low-level station at Queen Street, Glasgow, she was struck and injured by an open door on a passenger train which came into the station from behind her. The defenders do not dispute that there was evidence on which the jury were entitled to hold that the pursuer was so struck and injured.

The pursuer ascribes the fact of the open door to the fault of the defenders. The defenders deny fault. The jury have found in the pursuer's favour. Two questions have been argued. First, whether there was evidence on which the jury could reasonably hold the defenders at fault. Second, whether, if so, the pursuer is chargeable with contributory fault.

The train in question was a local one, which had come from Bowling to Queen Street, and had stopped at a number of intervening stations. There was evidence to show (1) that the door which struck the pursuer was seen swinging open as the train came towards Queen Street platform from the tunnel adjoining the station; (2) that the compartment in question was then empty; and (3) that the door had been on the platform side of the train at Bowling, as it was again at Queen Street, but that during the journey the door was on the off-side of the train, so that there was no occasion for any passenger to open it. Further, it is common ground that the door opened only by an outside handle, without any inside loop capable of being turned by a passenger inadvertently handling it.

On this evidence the pursuer maintains that she presented a prima facie case against the defenders, and I think she is right. The case of Gee v. Metropolitan Railway Company appears to me to support this view. It is, no doubt, possible that the door may have been opened by a passenger in the course of the journey. This possibility, however, is a remote one, seeing that no passenger had any occasion to open the door and that it could not have been opened inadvertently from the inside. I do not think that the pursuer was called on to lead evidence to negative this possibility.

If I am right in thinking that the pursuer presented a prima facie case against the defenders, the onus lay on the defenders to satisfy the jury by evidence that the fact of the open door was due to the action of some person for whom they are not responsible. The defenders led no evidence to show directly that the door had in fact been opened by a passenger or by any one for whom they are not responsible. They adduced the guard of the train, who, acknowledging it to be his duty to see all the carriage doors secured at Bowling, deponed that he always performed this duty, and, in particular, that he performed it on the occasion of the journey in question. It was, I think, for the jury who saw and heard this witness to weigh the reliability of his testimony. The defenders further adduced the fireman on the- engine of the train and employees at signal cabins en route, who said that it was their duty to note such a thing as an open door, and that they did not observe any open door on the train in question. These witnesses include the signalman at the cabin just adjoining the Queen Street platform. But, if the evidence for the pursuer was believed by the jury, the door in question was swinging open as the train came in from the said signal cabin to the platform. It was for the jury to judge what weight they attached to the testimony of these witnesses. And it has to be kept in view that, as common experience has shown, a railway carriage door which is only partially fastened at the start of the train journey may remain closed for a considerable time before it yields to the jolting of the train and swings patently open.

On the whole matter, holding as I do that the pursuer presented a prima facie case against the defenders, I think that it was for the jury to say whether the rebutting evidence adduced by the defenders displaced to their satisfaction the pursuer's case. The question is not whether the jury came to the best conclusion. The question is whether there was evidence before them on which they could, by a reasonable exercise of the power of judgment on the facts reposed in them, return the verdict they did; and in my opinion that question should be answered in the affirmative.

The second question raised is whether, if the defenders were at fault, the pursuer is chargeable with contributory fault, in respect of her having walked along the platform near enough to the edge of it to be struck by the open door which projected only 1 foot 8 inches over the platform. This question does not seem to me to be attended with difficulty. The short answer to it is, I think, that, in a question with the defenders, the pursuer in using the platform was entitled to regulate her actions on the assumption that the defenders would do their duty, and that there would not, by their fault, be an open door capable of injuring persons legitimately frequenting their platform.

Following the views which I have expressed, I am of opinion that the rule should be discharged.

Lord Justice-Clerk.—This case is one which is undoubtedly narrow upon the evidence, but I have come to the conclusion that there is no ground for holding that the jury have given a verdict which was unjustifiable as being contrary to the evidence. It appears to me that there was evidence on which it might be held that there was fault attributable to the Company, and that the attempt to make out a case of contributory negligence has failed.

It is settled by the case of Gee that the fact that a carriage door is swinging open when a train is running on the line affords prima facie evidence that due attention has not been paid to seeing that the door was securely fastened when the train left a previous station. In the present case I am of opinion that the jury were entitled to hold that, when the carriage, the door of which struck the pursuer, emerged from the tunnel which is at the end of the station, that door was swinging open. It is suggested that it might have been opened by someone inside the carriage with a view to alighting. But this suggestion cannot, I think, be accepted. A passenger who intends to alight at a station and eases the lock of the door on entering the station, does not allow the door to swing open, but keeps his hand upon it. Such a passenger is also looking forward, and would see anyone near the edge of the platform, and it is to be presumed would not leave the door open so as to strike any person he saw. And there is no evidence of any passenger alighting from the carriage in question. On the contrary, the evidence is that there was no one in the compartment as the carriage passed along the platform to the spot where the pursuer was standing. No doubt there is only one witness who speaks to this, but a fact of this kind does not require to be proved by more than one witness, and the jury were quite entitled to accept the evidence of the witness who spoke to having observed the fact. To this there is no satisfactory counter evidence; and the jury were quite entitled to disregard the evidence of the guard of the train, by which he endeavoured to prove that there were passengers in the compartment. He did not say that he observed that the compartment was occupied, but merely made the round assertion that there must have been passengers in the compartment, because he thought himself justified in saying that there never was such a thing as an empty compartment on his train. I think the jury rightly rejected that evidence. I should unhesitatingly have rejected it myself.

Then it is said that the railway servants stated that all the doors on that side of the train had been securely fastened when the train started from the station of departure, and that at all the intervening stations this door was not alongside the platform, but came alongside a platform only on arriving at Queen Street, where there is an island platform, so that the off side of the train becomes the entering and alighting side. This is true, but one knows quite well that railway officials are always prepared to say quite positively that everything was secure, basing their statement on practice, and being sure that they have always carried out their duty efficiently. But it is quite well known that, at times when it is believed that all the doors are fast when a train leaves a station, cases do in fact occur in which a door is not properly fast. Gee's case is an instance of this, and it is common knowledge that every now and again a person leaning against a door without first testing it falls out, because it has not been made secure. And such accidents do happen notwithstanding the fact that for long stretches of a journey the door, though not fast, is apparently fast, until something occurs to move it.

Again it is said that, if the door had been open, it would have been observed by the fireman looking along the train, or by a signalman, or by some other Company servant. But it does not appear to me that this is in any way certain. A door which appears to be closed from its lying up to the carriage frame, may go forward without swinging open, but at some point of the journey, where the train rounds a short radius curve, or receives a jerk in crossing points, it may swing open; and this may happen even after many stations have been passed. Here I think the jury were entitled to hold that the swinging open of the door was attributable to want of care on the part of the railway servants in seeing that it was properly made fast.

It only remains to consider whether there is any ground for attributing such negligence to the pursuer as would bar her claim for damages. It was strenuously maintained that, when a train that is to stop at a station is entering it, it is a fault for anyone on the platform to stand so near the edge of it that an open door may strike him. I cannot assent to that. I hold that the jury were entitled to judge of the question of contributory negligence. Whatever may be the danger of being near the edge of the platform when an express train is rushing through at a high speed and is therefore making a violent draught of air, in this case it must be remembered that the pursuer proposed to enter the train as a traveller. Moreover, there is the additional element here that the servants of the Company had, by placing loaded luggage barrows between the station's seat and the edge of the platform, narrowed the available platform to a considerable degree.

On the whole matter I am satisfied that sufficient ground has not been shown for making this rule absolute, and that it ought to be discharged.

Lord Salvesen.—The facts in this case are unusual. The pursuer was on the platform of the defenders' Queen Street low-level station waiting for a train which was due at 2.45 P.M. there and by which she intended to proceed to Armadale. The platform is what is known as an “island platform,” and along the centre line there were several fixed seats for the convenience of passengers. Some barrows had been placed outside one of the seats and so had narrowed the space available for foot traffic opposite the place where the barrows were standing. To get past the barrows the pursuer had to approach nearer the edge of the platform than she would otherwise have required to do. While she was walking along this comparatively narrow space she was struck on the left shoulder by an open carriage door of a passenger train which had approached from behind, and received certain injuries which it is unnecessary to detail. The only other fact which has a bearing on the liability of the defenders is that the compartment, the door of which had swung open, was empty; but the proof of this depends upon the evidence of a single witness—Mrs Spiers. Evidence was led for the defenders which I shall afterwards refer to, and at the conclusion of the trial the jury brought in a verdict in favour of the pursuer, thereby affirming that the accident with which she met was due to the fault of the defenders' servants, and impliedly negativing the plea of contributory negligence.

As regards the implied finding, I do not think any exception can be taken. It was strenuously urged, indeed, that no person is entitled to be so near the edge of a railway platform when a train is approaching that he may be injured by a door which has been negligently left open by the servants of the railway company or has been negligently opened by a passenger proposing to alight. No doubt a person who is more than usually careful of his safety will avoid running any risk at all by standing well back, but I cannot hold that it is the duty of an intending passenger to contemplate a carriage door being open before the train has stopped, so as to relieve the person by whose negligence that has happened from all liability for the consequences. Still less do I think that the Railway Company can in this case support such a plea, seeing that the space available for passengers moving along the platform had been considerably narrowed by the barrows I have already referred to. It is common ground that if the train had been in its normal state with all the doors securely fastened the pursuer would not have suffered any injury. When an express train is passing through a station and the travelling public on the platform are warned of its approach, it may well be that it is their duty to keep so far from the edge of the platform that the suction produced by the rapidly moving engine and carriages will not tend to draw them into a position of danger; but this does not apply to a train which is slowing up at a station preparatory to stopping and allowing passengers to alight.

The true point of the case (which seems to have been lost sight of in the multitude of issues raised by the defence) is whether negligence may legally be inferred from this carriage door having been open in the circumstances disclosed in the evidence. That it may be so in some cases is plain from the decision in Gee. In that case the only evidence led was that of the plaintiff and his brother who, at Victoria station, had entered an empty compartment which had come from Westminster and was about to start for the Aldersgate Street station. The plaintiff seated himself on the off side of the carriage nearest the six foot way. During the journey he stood up and leant his hand on a bar across the window of the off side of the carriage. It immediately flew open and the plaintiff fell out and was injured. These facts were held to justify a verdict in favour of the plaintiff. It is however very significant to notice that no evidence of any kind was led for the defendants; and the only point which was really argued was, not whether there had been negligence on the part of the defendants' servants in not securely fastening the door, but whether that negligence alone had caused the accident, the proximate cause of which was the plaintiff pressing against the door. In the argument submitted in support of the rule negligence of the defendants' servants was assumed; and indeed on any other assumption it is difficult to understand why the Railway Company offered no evidence. For aught that appears the off side of the carriage was the working side at the station which immediately preceded that at which the plaintiff entered the compartment. If so, as the evidence showed that the plaintiff and his brother had not in any way tampered with the fastenings of the door, the inference was clear that it had not been properly fastened as it ought to have been before the train left the previous station; and, as the compartment was empty when they entered it, the notion of the fastenings having been tampered with by any passenger was excluded.

In the present case the facts are very different. The witness Mackie, who was the passenger guard of the train the open door of which injured the pursuer, gave evidence to the effect that at Bowling he had properly shut the doors of all the carriages on the right-hand side of the train in the direction in which it was going—the then working side—which was the same side which the train presented when it entered Queen Street low-level station; that thereafter there were ten stations at which the train stopped, but at all of these the working side was the left-hand side of the train; and that Queen Street was the first station at which the train stopped where people had to get out on the right-hand side of the train. Between Bowling and Queen Street stations, therefore, no passenger had occasion to use the side on which the door was that swung open as the train approached Queen Street platform. The same witness depones that at Charing Cross station he saw the non-working side of the train and that there were no doors open upon it when it left the station. The fireman of the train who stood at the non-working side of the engine also deponed that no doors were open on that side when the train left Charing Cross. There was other evidence to the same effect. Accepting the evidence for the pursuer the cause of the accident must have been either (1) that the door had been closed but insufficiently fastened at Bowling and had sprung open of its own accord just before the train reached Queen Street station; or (2) that it had been originally properly fastened at Bowling, but that the fastening had been tampered with at some intermediate point by a passenger so that it was apt to open when the train passed round a curve, or that it had been gradually loosened by the vibration of the train until it had actually swung open. If either alternative infers negligence against the defenders then the verdict must stand; but if, on the other hand, the latter alternative is one which is consistent with the defenders' servants not being in any way to blame it humbly appears to me that the verdict cannot be supported.

The fact that the carriage was empty as it approached Queen Street station demonstrates only that the door had not been properly fastened when it left Charing Cross station. It does not exclude the view that some passenger at an earlier point may have tampered with the fastening and perhaps opened the door and afterwards pulled it to without locking the handle. There is no direct evidence as to whether the carriage in question had been occupied after the train left Bowling, but there is general evidence to the effect that this particular train was well patronised, and therefore that it was extremely unlikely that this carriage should have been empty all the time that the train took to travel past the ten stations to Queen Street. It was said on behalf of the pursuer that it was extremely improbable that any person would have touched the handle of what was the off-side door between any of these previous stations. I see no improbability of the kind. It is familiar enough that people open a carriage door some little time before they are approaching a station; and if they are not acquainted with the line, they may open the wrong door, in which case, when they discover their mistake, they would be very likely merely to pull it to without locking the handle. At all events, this hypothesis appears to me to be just as probable as that this particular door should have remained closed all the way from Bowling to Charing Cross, and should have swung open only just before the train entered Queen Street station. There is evidence to exclude the pursuer's theory if Mackie's statement is accepted and there was no counter evidence. On the other hand, there was no evidence at all to exclude the possibility of an intermediate passenger having tampered with the fastening. There is no evidence which enables the Court, any more than the jury, to decide in favour of the one hypothesis rather than the other. Each appears to me equally probable: both are certainly possible explanations.

All this, however, would not avail the defenders if they have a duty to examine the off-side doors of a train similar to that which is imposed upon them of examining and closing all the doors on the working side. The rules of the Railway Company do not provide for any such inspection, nor is there any evidence of other railway companies doing so. It is difficult to see how, in the ordinary working of a train, such an inspection could be carried out without causing very great delay and consequent inconvenience to passengers. To do the work efficiently, some person would have to travel along the footboard adjoining the six-foot way and see that every fastening was in position. From the near side of the train this cannot be seen where the fastening is one which opens only from the outside, as was the case with the fastening here. The duty of the Railway Company's servants under the rules is to close the windows on the off side of the train in empty compartments; but that duty is not prescribed for the safety of passengers, but for the protection of the Railway Company's own property. If a carriage door on the off side were seen to be open, it would certainly be negligence on the part of the guard who observed it if he did not close it; and perhaps it would be negligence if he failed to observe a carriage door that was in fact open on the off side and so failed to close it. But I cannot affirm on the evidence that it constitutes fault on the part of a railway company not to provide for a system of inspection of the handles of carriages on the off side of a train; and, indeed, I do not recollect that this was maintained on behalf of the pursuer.

I am accordingly of opinion that the mere fact of the door in question having swung open before it reached the platform on which the pursuer was walking is not a sufficient ground for inferring that it had not been properly fastened through the fault of the defenders' servants; and that, therefore, there was no evidence on which the jury could base a finding of fault.

Lord Guthrie.—The defenders deny fault and allege contributory negligence. I think fault, leading to the accident, has been proved against them, and that they have failed to establish contributory negligence.

At the trial, the defenders endeavoured to show that there had not been, and could not have been, any accident. This attitude was abandoned in the argument before us, when the case was taken on the footing (1) that the train in question came alongside the platform with a door of a compartment swinging open, and (2) that the pursuer was struck by that door.

The pursuer contended that these facts were sufficient to raise a presumption of fault on the part of the Railway Company, and, therefore, to shift the onus, which she admitted lay on her in the first instance, to prove fault. She founded on Gee v. Metropolitan Railway Company . In that case the plaintiff entered, at Victoria, a train which had come from Westminster. When the train was approaching Sloane Square he stood up, and took hold of and leaned on the small brass rod across the window of the off-side door of the compartment, intending to put his head out to see the signal lights. The door flew open; he fell out and was injured. There was no further evidence as to the construction of the door and its fastenings. The railway company led no evidence. The jury found for the plaintiff, and the Queen's Bench and Exchequer Chamber held that there was sufficient evidence and that the verdict ought to stand. The Judges (who all gave opinions) were Cockburn, C.J., Blackburn, J., Mellor, J., Quain, J., Kelly, C.B., Martin, B., Keating, J., Brett, J., Cleasby, B., and Grove, J. If that decision, pronounced by an exceptionally strong bench, be sound, it is an authority in the pursuer's favour. There was no evidence that the compartment was unoccupied between Westminster and Victoria, and the railway company argued that the door might have been unlocked and left unfastened by a passenger travelling between these stations. Similarly, in the present case, the defenders argue that the door, which was swinging open when the train came into Queen Street Station, may have been unlocked by a passenger travelling between any of the ten stations stopped at in the journey from Bowling to Queen Street. This argument failed in Gee's case. Should it prevail in the present case?

If it was held in Gee's case that the mere fact of a railway carriage door flying open, while the train was in motion, raised a presumption of fault on the part of the company, it is not necessary to affirm that proposition in this case. I accept the view put forward by the Solicitor-General that it is a question of circumstances whether any such presumption of fault arises. For instance, if it had been proved that the compartment, of which the door was swinging open, had contained a passenger or passengers when it arrived at Queen Street, I should have doubted, looking to the known custom of people to open the doors of carriages before the stoppage of trains despite the endeavours and warnings of railway companies to prevent the practice, whether any such presumption arose. But in this case it is proved that, when the train came in sight at Queen Street out of the tunnel and beyond the signal bridge, there was no person in the compartment. That seems to me a circumstance which, taken in conjunction with the open door, is sufficient to throw the onus on the defenders of clearing themselves from the fault, which, otherwise, is the reasonable inference. They might perhaps have done so by evidence that the compartment was occupied during some part of the journey between Bowling and Queen Street. They say they have done so, and they rely on the cross-examination of Mackie, the guard. The passage in his evidence is as follows:—“Assuming that a carriage door was swinging open as it came out of the tunnel, or through the signal bridge at Queen Street station, and that no one was in the compartment, how do you account for that? (A.) I would say it was not right, because that is a very well-filled train coming from Bowling, and there is not a compartment that is not used. (Q.) You never, on any occasion, have an unoccupied compartment? (A.) Not one. (Q.) And there never are such? (A.) No. (Q.) Assuming there was a vacant compartment, and that as the train came out of the tunnel, or from under the bridge at the signal cabin, the door was swinging open, must that not have been due to it not having been closed at Bowling? (A.) No. I would say that was impossible.” That evidence, on the face of it, is not reliable, because it makes two obviously incorrect assertions, first, that Mackie had never seen an unoccupied compartment on the journey between Bowling and Queen Street, and, second, that it was “impossible”that the door was not fastened at Bowling. It may be the misfortune of the defenders that, looking to the day of the week (Monday) and the season of the year (February), no presumption of heavy traffic arises in their favour, and it may also be their misfortune that, owing to information of the accident not being lodged on the spot, they were unable to produce evidence of the compartment being occupied between Bowling and Charing Cross. But the result is that, in my opinion, there is no reliable evidence on which to found the defenders' suggestion that the door may have been opened and not re-fastened en route before leaving Charing Cross, by a passenger, mischievously, or by mistake. If so, it seems to me that the reasonable inference is the one maintained by the pursuer, namely, that the door, owing to the defenders' negligence, was not fastened at Bowling. The defenders only suggest a possibility, without any evidence to raise it to a probability. The pursuer founds on a proved fact as to the state of the train when it reached Queen Street station, which, unless effaced by evidence as to the position of the door at an earlier part of the journey, leads, in my opinion, to reasonable proof of fault. Mackie's statement as to the doors being fastened at Bowling is merely a statement of practice, and not from recollection of this particular train.

As to contributory negligence, it appears that there was a clear space of some four feet between the edge of the platform and the barrows on the platform, and that the pursuer must have been walking some two feet from the edge of the platform. In the absence of any warning from the defenders' servants I do not think the defenders have proved contributory negligence. The pursuer was not bound to assume that the defenders might work their line in disobedience to their own rules. It is said that she should have anticipated that passengers might be opening doors in preparation for alighting. But, when this takes place, the door is not usually flung fully open, but is held in the passenger's hand. It was also suggested that she might just as well have been struck by a passenger looking out of the window. But, in that case, if it were possible for such a passenger to have leaned out far enough to have come against the pursuer, he would have been looking the way the train was going and would have avoided the pursuer.

On the whole matter, I think the verdict ought to stand.