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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Burns v. North British Railway Co. [1914] ScotLR 648 (05 June 1914)
URL: http://www.bailii.org/scot/cases/ScotCS/1914/51SLR0648.html
Cite as: [1914] ScotLR 648, [1914] SLR 648
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SCOTTISH_SLR_Court_of_Session
Page: 648↓
Court of Session Inner House Second Division.
[
v.
Facts:
A passenger while walking on a railway platform was struck and injured by the open door of a passenger train which came into the station from behind her. In a trial by jury for damages at the instance of the injured person evidence was led to show that the door was open as the train entered the station, that the compartment was empty, that the door was on the off side of the train at all the stations between the departure station and the station where the accident happened, and that there was no inside handle by which it could be opened inadvertently from within the compartment. The pursuer having obtained a verdict, held (1) ( diss. Lord Salvesen) that the jury was entitled to infer negligence on the part of the railway company, and (2) that the jury was not bound to infer contributory negligence on the part of the pursuer.
Mrs Bridget Reynolds or Burns, wife of Michael Burns, cinematograph proprietor, Armadale, with his consent and concurrence as her curator and administrator-in-law, pursuer, brought an action of damages against the North British Railway Company, defenders, in which she claimed £1000 damages for personal injury sustained through the fault of the defenders. She averred that while walking along the platform of the Queen Street Low Level station, Glasgow, she had been struck and injured by the open door of a compartment of a train which was entering the station from behind her.
The case was tried before Lord Cullen and a jury on 6th and 7th November 1913, when the jury returned an unanimous verdict for the pursuer and assessed the damages at £250.
The train came from Bowling, and from there to Queen Street, though it stopped at many stations, none of these had the platform on the off side of the train.
The defenders thereafter obtained a rule, and at the hearing on the rule the pursuer argued—The jury was entitled on the evidence to infer that the door was not properly shut at Bowling, and that the defenders were therefore guilty of negligence. It was the defenders' duty to see that the doors were closed on both sides at every station, and the fact that the door was open gave rise to a presumption of negligence— Gee v. Metropolitan Railway Company, 1873, L.R., 8 Q.B. 161. Pursuer had not been guilty of contributory negligence in being so near the train— Wilson v. North British Railway Company, November 8, 1873, 1 R. 172, 11 S.L.R. 155.
Argued for the defenders—There was no evidence justifying an inference of fault on the part of the defenders. There was a material difference between a door opening on the working and on the non-working side of the train. There was no evidence that the door had not been interfered with by a passenger, and in that case the defenders would not be liable. In the case of Gee v. Metropolitan Railway Company ( cit. sup.) the railway company did not lead evidence. There must be reasonable evidence of negligence before defenders could be held liable— Metropolitan Railway Company v. Jackson, 1877, 3 A.C. 193; Murray v. Metropolitan District Railway Company, 1873, 27 L.T. 762; Drury v. North Eastern Railway Company, [1901] 2 KB 322. (2) In any event the pursuer had been guilty of contributory negligence. A passenger waiting at a station had a duty to keep clear of trains in motion. In this respect the present case differed from the case of Tough v. North British Railway Company, 1914 S.C. 291, 51 S.L.R. 225, where the train was at rest. The pursuer in the present case voluntarily took the risk— Adams v. Lancashire and Yorkshire Railway Company, 1869, L.R., 4 C.P. 739; Siner v. Great Western Railway Company, 1869, L.R., 4 Ex. 117; Bridges v. North London Railway Company, 1871, L.R., 6 Q.B. 377 ( rev. L.R., 7 (H.L.) 213).
At advising—
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
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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
resented 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 anyone for whom they are not responsible. They adduced the guard of the train, who, acknowledgeing 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 attach 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 open 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.
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Again, it is said that if the door had been open, it would have been observed by the driver looking along the train, or by a signalman, or some other company servant. But it does not appear to me that this is in any way certain. If a door appears to be closed, from its lying up to the carriage frame, it 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 after many stations have been passed. Here I think the jury were entitled to hold that the door swinging open was attributable to want of care 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 debar her claim for damages. It was strenuously maintained that it is a fault for anyone to be on the platform of a station when a train that is to stop is entering it, at such a distance 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, especially in the case of a person who is proposing to enter the train as a traveller. And in this case there is the additional element 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 in 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.
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 nave 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
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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 do so in some cases is plain from the decision in Gee, 8 Q.B. 161. In that case the only evidence led was that of the plaintiff and his brother, who had entered an empty compartment at Victoria station 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 defenders; and the only point which was really argued was not whether there had been negligence on the part of the defenders' 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 defenders' 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 it 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 at which 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 in 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 engine-driver 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 that 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 appeal's 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 some 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
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All this, however, would not avail the defenders if they have a duty to examine the off carriage 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.
At the trial the defenders endeavoured to show that there had not 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, (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, 8 Q.B. 161. 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 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 nine 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 connection 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
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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.
The Court discharged the rule.
Counsel for the Pursuer— G. Watt, K.C.— D. P. Fleming. Agents— Purves & Simpson, S.S.C.
Counsel for the Defenders—Solicitor-General ( Morison, K.C.)— E. O. Inglis. Agent— James Watson, S.S.C.