Scottish Court of Session Decisions

On 21st February 1914 T. B. Fowler, furniture dealer, Edinburgh, pursuer, brought an action against the North British Railway Company, defenders, for £100 damages in respect of physical injuries which he alleged he had sustained while travelling in one of the defenders' trains from Berwick — on-Tweed to Edinburgh.

The Pursuer Averred—“(cond. 2) The Said train Came From Newcastle-on-Tyne, and at Berwick station the pursuer entered a

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North-Eastern Railway carriage (No. 2633) and took his seat in the right-hand corner with his face towards the engine. The pursuer was alone in the carriage. He sat quietly reading a newspaper and smoking. (Cond. 3) Shortly after leaving Dunbar the pursuer leaned across in order to deposit the ash from the cigarette which he was smoking in the ash-holder provided on the side of the door opposite to him. The train was at that time travelling at a high rate of speed. While the pursuer was in the act of leaning across for this purpose the carriage door suddenly flew open without any warning, and the pursuer with great difficulty saved himself from being thrown or blown out of the carriage. The pursuer had in no way touched or come against the lock of the said door. The speed at which the train was travelling caused the open door to swing backwards and forwards violently. The glass in the window of the door was broken into fragments, and the door itself was damaged. The pursuer endeavoured to shut the door, but was unable to do so. The train was stopped by railway signals at Drem, and the door was closed by the railway company's officials. (Cond. 4) By the occurrence the pursuer was greatly alarmed. He narrowly escaped being thrown out of the train, and the shock arising from the danger in which he was placed has caused severe injury to his nervous system. On his arrival in Edinburgh the pursuer was suffering from sickness and faintness, and was obliged to consult a doctor. Ever since the occurrence he has suffered in his health. The alarm of the occurrence preyed on his mind, and he has had to receive frequent attention from his medical advisers. In particular, the pursuer has suffered from sleeplessness, nausea, faintness, and giddiness. He has not yet fully recovered his health.… (Cond. 6) The occurrence by which the pursuer was injured as aforesaid was due to the fault or negligence of the defenders' servants. The door swung open while the train was in motion through not being securely fastened. The absence of proper fastening would have been detected had any reasonable inspection been made before the train left on its journey, but such inspection was either not made at all or was conducted in a careless and inefficient way.”

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

On 22nd May 1914 the Lord Ordinary (Ormidale) approved of the following issue—“Whether on 16th December 1913 the pursuer, while travelling as a passenger on the defenders' railway from Berwick-on—Tweed to Edinburgh, was injured in his person through the fault of the defenders, to his loss, injury, and damage? Damages laid at £100 sterling.”

The defenders reclaimed, and argued—The action was irrelevant. Esto that the door did fly open, that would not have alarmed a passenger of ordinary strength of mind. There was no actual danger, and the fright if sustained was quite unreasonable. The case of Cooper v. Caledonian Railway Company, June 14, 1902, 4 F. 880, 39 S.L.R. 660, on which the pursuer relied, was distinguished, for the injuries there averred were the natural result of the defenders' negligence. Here the pursuer had himself caused the injuries by attempting to close the door, and they could not therefore be said to be the natural or necessary result of the company's negligence— Adams v. Lancashire and Yorkshire Railway Company, (1869) L.R., 4 C.P. 739. Esto, however, that the pursuer's averments were relevant, the case was one for proof and not for jury trial.

Argued for respondent—The pursuer's case disclosed not merely apprehension of danger but actual danger, of which the physical injuries averred were a natural result. Esto that fear might not be a good ground of action, the pursuer had averred physical injuries due to shock, and he was entitled toprovethem— Cooper (cit.); Dulieu v. White & Sons, [1901] 2 KB 669, per Kennedy, J., at pp. 673 and 679; Bell v. Great Northern Railway Company, (1890) 26 L.R. (Ir.) 428; Gilligan v. Robb, 1910 SC 856, 47 S.L.R. 733; A v. B's Trustees, January 17, 1906, 13 S.L.T. 830; Wallace v. Kennedy, November, 1908, 16 S.L.T. 485.