Scottish Court of Session Decisions

On 21st November 1913 Mrs Annie Batchelor or Clarke, wife of John Clarke, 11 Johnstone Terrace, Edinburgh, pursuer, with the consent and concurrence of her husband, brought an action against the Edinburgh and District Tramways Company, Limited, defenders, in which she claimed £200 damages for personal injury sustained through being thrown to the ground while preparing to alight from one of the defenders' cars, owing, as she alleged, to the fault of the defenders.

The pursuer averred—“(Cond. 2.) At or about 11 o'clock p.m. on Thursday, 30th October 1913, the pursuer, accompanied by her said husband, boarded one of the defenders' tramway cars at Hope Park Terrace, Edinburgh, with the intention of being conveyed to High Street, Edinburgh. (Cond. 3.) At or near the corner of North Bridge Street and High Street there is in North Bridge Street a stopping-place fixed by the defenders at which all cars proceeding north along North Bridge Street stop for the purpose of setting down and picking up passengers, and it was the intention of the pursuer and her husband to alight at said stopping-place. (Cond. 4.) As the tramway car upon which they were travelling approached said stopping-place the pursuer and her husband rose from their seats inside the car and proceeded to the rear platform of said car in order to be in readiness to alight whenever said car should stop at said stopping-place. When pursuer and her husband arrived at said rear platform the car was already slowing down, and the pursuer took hold of the handrail at the window of said car with her right hand in order to steady herself. Instead of the car coming slowly to a stop, as it should have done, suddenly and without warning the car started violently forward with a jerk which threw the pursuer off her feet from said platform and precipitated her from said car on to the street.… (Cond. 6.) The said accident was occasioned by the fault of the defenders, or of those for whom they are responsible. It is the duty of the driver of a car to obey the signals of the conductor with regard to passengers desiring to alight. It is the duty of the conductor of a car to be on the rear platform of said car, or at least to be in such a position on said car when it is approaching a stopping-place that he can see whether there are any passengers who desire to alight. It is also his duty when approaching said stopping-place to keep a careful look-out to see whether there are any passengers on said car who desire to alight at said stopping-place, and to signal the driver to stop when there are such passengers. On the night in question the conductor of said car, as the car approached said stopping-place, was inside the car at the end next the driver making entries in an official book kept in a receptacle at said end of the car. The pursuer and her husband were seated near the rear end of the inside of said car, and when they proceeded from their seats to the rear platform for the purpose of alighting at said stopping-place the conductor was so engrossed in making entries in said book that he negligently and in breach of duty failed to observe that the pursuer and her husband had left the inside of said car for the purpose of alighting. He made no attempt to ascertain by personal inspection whether there were any passengers on the rear platform desiring to alight, and gave no signal to the driver to stop at said stopping-place. The driver of said car had slowed down the car and was preparing to bring the car gently to a stop, but when he received no signal to stop he instantly and with a violent jerk set the car in motion again, when the pursuer had been led to believe by the slowing down of said car that the said car was about to stop. The pursuer was thus taken unawares, and the accident resulted. The

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said accident was accordingly caused by the conductor's neglect of duty in not ascertaining that the pursuer and her husband were standing at the rear platform of the car expecting said car to stop at said stopping-place, and preparing to alight, and in leading the driver to believe, after the said driver had slowed down with a view to stopping, that there were no passengers desiring to alight. Alternatively, the driver of said car was at fault. On the night in question the driver, as the car approached said stopping-place, released the gripper from the cable and slowed down the car in order to be in a position to bring his car to a stop at said stopping-place in as speedy a manner as possible, as it was the last journey for the night. When the car came close to said stopping-place there were no passengers at said stopping-place who desired to board said car, and the driver, in disregard of a signal from the conductor that passengers desired to alight, suddenly and without warning applied the gripper to the cable, and with a jerk set the car in motion at full speed, and caused the pursuer to be precipitated from the rear platform of said car on to the street, with the result as aforementioned. The said accident was accordingly due to the disregard by said driver of the conductor's signal to stop at said stopping-place.”

She pleaded, inter alia—“(1) The pursuer having been injured through the fault of the defenders in one or other of the alternative methods condescended on, is entitled to reparation therefor.”

The defenders, inter alia, pleaded—“(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed.”

The record was closed on 16th December 1913.

On 10th January 1914 the Lord Ordinary ( Anderson) refused in hoc statu a motion for the pursuer that the defenders should be ordained to give her the names and addresses of the driver and conductor of the car.

On 13th January 1914 his Lordship sustained the defenders' first plea-in-law and dismissed the action.

Opinion.—I have a good deal of sympathy with the pursuer in this case. She avers that as the result of what happened three of her ribs on the right side were fractured, the right side of her head was severely bruised, and she sustained a severe shock to her nervous system, and has possibly also sustained internal injuries which will permanently affect her health. There is no doubt, if her story is true, that these injuries were received by her in consequence of her having been precipitated from a tramcar in North Bridge Street, Edinburgh. But I am afraid the case is just one of those in which the pursuer is in the position of not being able to prove in the appropriate way, by appropriate legal evidence, the fault which she thinks ought to be established against the defenders' servants.

One sees in the newspapers now and then advertisements asking that witnesses who saw a certain accident should communicate with a certain solicitor, and there is no doubt that many cases in which probably the injured party has a right to a legal remedy, do not come into the law courts because evidence cannot be obtained to bring home fault to the wrong-doer. It seems to me that this case is just in that position, and if I am right in the judgment I am shortly about to pronounce, the moral of the matter is that an action should not be brought until a pursuer in the first place has made up his mind on what ground his action is to be put, and, in the second place, has satisfied himself that he is in possession of legal evidence by which he may reasonably expect to substantiate the kind of fault that he is going to put forward in his action.

“In the present case the pursuer is the wife of John Clarke, 11 Johnstone Terrace, Edinburgh, and she brings an action against the Edinburgh and District Tramways Company, Limited, in which she concludes for payment of £200; and the facts which she avers on record and the averments which she makes setting forth the grounds of fault against the defenders are these.” [ After narrating the averments his Lordship proceeded]—

Now, undoubtedly, the circumstances there averred, if they are true, disclose fault against someone—against one or other or both of the servants who were in charge of the tramway car. It is negligence to start a car violently from a stopping-place while people are in the act of alighting from that car, and if the pursuer had relevantly stated the fault occasioning the jerking of the car which she averred against one or other of the servants of the company, or jointly against both, I think, there is no doubt she would be entitled to an issue. But then what does she do when she comes to deal with the question of fault, when she comes to set forth the cause of the jerking of the car to which I have alluded?

She begins with the conductor and she says this—‘It is the duty of the conductor of a car to be in the rear platform of said car, or at least to be on such a position on said car when it is approaching a stopping-place that he can see whether there are any passengers who desire to alight. It is also his duty when approaching said stopping-place to keep a careful look-out to see whether there are any passengers on said car who desire to alight at said stopping-place, and to signal the driver to stop when there are such passengers. On the night in question the conductor of said car, as the car approached said stopping-place, was inside the car at the end next the driver making entries in an official book kept in a receptacle at said end of the car.’

Now that is a distinct averment of fact. There are no preliminary words such as ‘the pursuer believes and avers’ that the conductor was in that position. That is a distinct averment of fact intimating to the defenders that at the trial evidence will be led to the effect that their conductor instead of being, as he ought to have been, at the

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stopping-place on the rear platform of the car, was engaged in connection with his tickets in the interior of the car. Then she avers that she and her husband were seated near the rear end of the inside of the car, and when they proceeded to alight the conductor was so engrossed in making entries in his book that he negligently and in breach of duty failed to observe that the pursuer and her husband had left the inside of the car for the purpose of alighting. There again is a distinct intimation to the defenders that it will be proved at the trial by the pursuer as a matter of fact that the conductor was so engrossed inside the car making entries in his book that he negligently failed in his duty.

The pursuer then goes on to say that the conductor made no attempt to ascertain by personal inspection whether there were any passengers on the rear platform desiring to alight, and gave no signal to the driver to stop at the stopping-place. The driver had slowed down the car and was preparing to bring the car gently to a stop, but when he received no signal to stop he instantly, and with a violent jerk, set the car in motion again, when the pursuer had been led to believe by the slowing down of the car that the car was about to stop. The pursuer was thus taken unawares and the accident resulted. The said accident was accordingly caused by the conductor's neglect of duty.

Now there again is a distinct intimation to the defenders that the case which the pursuer is making against them is a case in which the fault complained of is that the conductor, in breach of his duty, failed to give the driver a signal to stop the car. Well that is a good case; it is quite a good case on relevancy if the pursuer had stopped there, and if the pursuer had made up her mind that that was the case which she was going to attempt to prove, and had stopped at that point, I should have had no difficulty in holding that she had stated a relevant case, and I should at once have given her an issue to enable her to go to a jury to substantiate that case.

But she does not stop there. Having given the defenders notice, distinct notice, of the fault she is going to prove against them, she immediately proceeds to make another case of fault equally specific, and equally distinct—a case of fault against the driver and a case of fault against the driver which depended on action by the conductor, totally different from that which I have just alluded to, and absolutely inconsistent with it.

She says—‘Alternatively, the driver of said car was at fault. On the night in question the driver as the car approached said stopping-place released the gripper from the cable and slowed down the car in order to be in a position to bring his car to a stop at said stopping-place in as speedy a manner as possible, as it was the last journey for the night. When the car came close to said stopping-place there were no passengers at said stopping-place who desired to board the said car, and the driver, disregard of a signal from the conductor that passengers desired to alight, suddenly and without warning applied the gripper to the cable, and with a jerk set the car in motion at full speed, and caused the pursuer to be precipitated from the rear platform of said car on to the street.’

“Accordingly the defenders are faced with this situation, that in one breath the pursuer says the conductor is in fault because he gave no signal, in the same breath she says, equally definitely and distinctly, that the conductor gave a signal but that the driver was in fault because he paid no attention to that signal. Now the conclusion I have reached on that state of the pleadings is that it would be quite improper to allow a case of this sort to proceed where the pursuer has been quite unable to make up her mind as to the specific fault which caused her injury, and where obviously she has no opinion one way or another as to who was to blame. It would be, in my judgment, out of the question to allow such a case to go to a jury on the probability that the pursuer might in the interval obtain some evidence to substantiate one or other of the cases which she has put on record, but which the defenders have no means of ascertaining is to be the only case to be made against them at the trial. I am accordingly of opinion that this record does not fairly disclose to the defenders the case which is to be made against them; that the action is irrelevant; and that accordingly an issue cannot be granted.”

The pursuer reclaimed, and argued—(1) Esto that the pursuer had averred alternative grounds of fault, she was clearly entitled to do so—Mackay's Manual, 185. Esto that had either of the alternatives been irrelevant the whole statement would have been irrelevant— Finnie v. Logie, May 18, 1859, 21 D. 825, per the Lord President at p. 829—that was not so here, for each of the grounds of fault averred were good grounds of action. The dictum of Lord Watson in Hope v. Hope's Trustees, July 28, 1898, 1 F. (H.L.) 1, 35 S.L.R. 971, that where there were alternative averments of fact relevancy must depend upon the weaker alternative, assumed the competency of alternative statements. Esto that a verdict on both of two mutually exclusive issues would not be allowed to stand— Spring v. Martin's Trustees, 1910 S.C. 1087, 47 S.L.R. 703—there was no reason to anticipate that a jury would return an inconsistent verdict here. (2) As to Precognoscing Witnesses.—The Lord Ordinary was in error in refusing the pursuer's motion for the names and addresses referred to. Such a motion was clearly competent where, as here, the record was closed— Barrie v. Caledonian Railway Company, November 1, 1902, 5 F. 30, 40 S.L.R. 50; Henderson v. Patrick Thomson, Limited, 1911 S.C. 246, per the Lord President at p. 249 foot, 48 S.L.R. 200.

Argued for respondents—(1) The pursuer's averments were self-contradictory, and the action therefore was irrelevant. The cases of Finnie ( cit.) and Hope ( cit.) were distinguishable, for they proceeded upon alternative inferences from certain facts, and not,

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as here, upon alternative conclusions in fact. The pursuer's case gave no fair notice to the defenders of the case they had to meet, and that being so the record was irrelevant. (2) The rule referred to was inapplicable where, as here, issues had not been finally adjusted. The defenders, therefore, were within their rights in refusing to give the information asked for— Henderson ( cit.).