Scottish Court of Session Decisions

J. H. Wallace, stockbroker, Kilmalcolm, pursuer, brought an action in the Sheriff Court at Glasgow against A. Norman Bergius, Glasgow, defender, for £400, 10s. 3d. damages in respect of loss sustained by the pursuer arising out of injuries caused to his motor car which were the result of a collision between it and a motor car belonging to the defender on 31st October 1912. The defender made a counter claim for £320 in respect of loss sustained by him arising out of injuries caused to his motor car in the collision.

The following narrative of the facts is taken from the opinion of the Sheriff ( infra)—“… Without going into the details, I think it is proved that shortly after five o'clock on the date in question the Bergius

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car crossed the river at the Renfrew Ferry, and that at that point the chauffeur took advantage of the delay in crossing to light the lamps of the car. The car after crossing the river proceeded up towards Scots-tounhill, where it met the Wallace car in the neighbourhood of a cottage called the Knightswood Cottage. The Wallace car was proceeding westwards from Glasgow, and I think it is proved clearly that after passing a bend on the road at which many cars going west swing over towards the north side of the road (the wrong side), he continued to travel on the north or his wrong side of the road until he came quite close to the Bergius car. Up to this point the two cars were proceeding end on, and if they had continued a collision was inevitable. When they were quite close the Bergius car, thinking that the other one did not intend to give way, deflected towards the south, and at the same moment or very shortly afterwards the Wallace car also deflected towards the south, with the result that the collision occurred. I think it is proved that at the time the Bergius car deflected the cars were in distance within a few yards of one another, and in time within a second or two of colliding. At the same time it is not proved that if the Bergius car had remained on its own side—that is to say, the north side of the road-and the Wallace car had deflected when it did a collision would have occurred.”

On 10th February 1914, after a proof led, which by agreement was restricted to the question of blame, the Sheriff-Substitute ( Fyfe) found in fact that the accident was occasioned through the fault of the pursuer's servant who was in charge of the pursuer's car, and found in law that the pursuer was liable to the defender in reparation.

Note.—… The present case is concerned only with the damage done to the cars. The pursuer makes a claim of £400 and the defender counter-claims for £320.

As generally happens in collision cases the proof is contradictory, but I have come to the conclusion that the blame for the collision rested with the pursuer's servant, and that the only question requiring serious consideration is whether the defender's servant was guilty of contributory negligence.…

In my opinion the pursuer's servant was to blame, not because he failed to see the defender's ar, but because, seeing it, he failed in sufficient time to take the requisite action to keep out of its way.

I heard a great deal at the proof (as one always does in these cases) about a vehicle keeping to what is loosely spoken of as its own side of the road. But so far as I know there is no legal obligation requiring any vehicle to keep either side of the road so long as that vehicle has the whole roadway to itself, and is neither overtaking nor meeting another vehicle. Perhaps it might be a good thing if the law did lay down rules of the road, but that has not yet been done.

I am of course very far from saying anything to weaken in any way the popularly understood safety-practice of each vehicle keeping to its near or left side of a roadway, but I do not know of any law making that imperative, and I think that in collision cases witnesses generally—and especially so—called expert witnesses—have a tendency to confuse in their minds a thing which is prudent to do with a thing which there is a legal obligation to do. They probably have in their minds navigation rules, which in narrow channels and inland water require vessels to keep to the left in all circumstances. But these are statutory rules which do not apply on land.

The only rule of the road of which the law takes cognisance is that when two vehicles are meeting each other each should in order to pass safely bear to its left.

In the present case the two motor cars were meeting each other. The defender's car was coming towards Glasgow, and the pursuer's car was going out from Glasgow.

I think it is a proved fact in the case that the defender's car was on its left-hand side of the roadway, and it is also a proved fact in the case that the pursuer's car was on its right-hand side—that is to say, both cars were on the same side of the roadway although they were coming in opposite directions. In these circumstances the defender's car had nothing to do but keep its course, the duty being upon pursuer's car to bear to the left. In my opinion the whole explanation of the casualty is that the pursuer's car carried on too long before proceeding to perform this duty.

At this point comes in an element upon which I had some very remarkable evidence—viz., whether there was a duty upon either car to stop. Here again I think there is often in the minds of witnesses a good deal of confusion as to legal obligation. I do not know of any law which requires either of two approaching vehicles to stop merely because they happen to be approaching each other on the same side of the roadway. Each vehicle is entitled to assume that the other is under proper control, and will at the proper time be steered in the proper direction; and a motor car belongs to a class of vehicles whose course can be deflected so easily that it does not appear to me that any circumstances existed which required either car to stop. If it were necessary for one to stop, of course it was also necessary for the other car to stop, and traffic would become impossible if every motor car which has a vehicle in front of it on the same side of the road were required to stop. The cars would never get past each other at all.

The next question raised is that of speed. On record each party accuses the other of reckless driving, but I do not think that the proof discloses that either car was going too fast, nor does the proof disclose any reason why both should not have been driven at a smart pace.

Neither his own speed nor that of the other car was the explanation of the pursuer's driver failing to bear to the left and to pass the other car in safety. It was not furious driving but defective steering which was the cause of the casualty.

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There is nothing whatever in the proof to suggest that the machinery of pursuer's car had at the moment failed its driver, or that there was any reason for his not bearing to the left earlier than he did.

In the whole circumstances I think there is no doubt that pursuer's servant was to blame for the casualty.

The other question is whether the defender's servant was also to blame. It is not doubtful that just as a collision was imminent defender's car did bear to the right—that is to say, it left what in normal circumstances ought to have been a safe position and attempted to pass pursuer's car on the south side of the road. Simultaneously the pursuer's servant did what he should have done earlier—he bore to the left The result was that both cars were angled across the road, pointing in the same direction, and that they collided at an angle.

It was faintly suggested in argument by the pursuer's agent that the explanation of defender's car leaving the north side of the road was that there was better going on the south side. But there is not, I think, any evidence at all to support this suggestion. The real explanation of the casualty is that pursuer's servant had carried on, on the north side of the road, so long as to induce a reasonable belief in the mind of the defender's servant that he intended to stick to the north side, and accordingly defender's servant, in the emergency which arose, endeavoured to give him the roadway on the north side.

I am not required to decide whether it was a wise thing on the part of the defender's servant to endeavour to leave the north side of the road. It was perhaps an error of judgment on his part to do so, and possibly if he had kept where he was the pursuer's car might have passed him in safety, although it would have been a close passing. What I am alone concerned with is whether the action of defender's servant was on his part fault or negligence in the legal sense.

It is a well-recognised doctrine as regards collisions at sea—and the principle is equally applicable on land—that where one party is primarily at fault and puts the other party into a situation of peril and forces him to act in an emergency, the party primarily in the wrong is precluded from pleading fault against the other party. The principle has been applied in many maritime cases, and was very aptly expressed by L. J. James in the case of “ Bywell Castle,” 1879, 4 Probate 223, where he said—‘A ship has no right by its own misconduct to put another ship into a situation of extreme peril and then charge that other ship with misconduct. My opinion is that if in that moment of extreme peril and difficulty such other ship happens to do something wrong, so as to be a contributory to the mischief, that would not render her liable for the damage, inasmuch as perfect presence of mind, accurate judgment, and promptitude under all circumstances are not to be expected. You have no right to expect men to be something more than ordinary men.’ If in this passage one reads ‘motor car’ for ‘ship’ I think the situation in the present case is expressed. The pursuer's car put the defender's car into a situation of peril, where the defender's servant had to act in a moment of emergency. If in the emergency defender's servant committed an error of judgment, that was not in the legal sense fault inferring liability for damage.

“In my view, therefore, the pursuer's claim should be refused and the defender's counter-claim sustained.…”

The pursuer appealed to the Sheriff ( Gardiner Millar), who on 17th June 1914 adhered.

Note.—“… [ After the narrative supra] … So far as the practice of chauffeurs is concerned, it is the evidence of all the experts that the chauffeur of the Bergius car should have remained on the north side and not deflected to the south, no matter what the Wallace car did. On these facts the question of law seems to me to be a difficult one. There is no doubt that according to the Statute 1 and 2 Wm. IV, cap. 43, section 97, incorporated in the Roads and Bridges Act 1878 (41 and 42 Vict. cap. 51), section 123, the driver of the Bergius car was bound to keep to the left or near side of the road on meeting the Wallace car. There is further no doubt on the evidence that in the view of all the experts he did wrong in not keeping to the left and in deflecting to the south. Accordingly I must hold that the driver of the Bergius car was wrong when he deflected his car to the south side of the road.

But then the agent for the defender relied upon the rule which is sometimes known as the “agony rule” at sea, and is referred to upon page 3 of Marsden on the Law of Collisions at Sea (6th ed.), where he says—‘If a vessel by her own fault makes a collision so imminent that it cannot be avoided except by extraordinary skill, nerve, or exertion on the part of the other ship, and a collision occurs, it will be held to have been caused by the former, and she will be liable for the entire loss.’ It is curious that in none of the cases to which I was referred has the Court held that the ship whose error caused the collision may be excused on this ground. In the case of the “ Bywell Castle,” L.R., 4 PD 219, the Court held that the error of the captain of the “ Bywell Castle” did not cause the collision, and in the case of the “ Khedive,” L.R., 5 A.C. 876, the House of Lords held that the captain of the “ Khedive” was not excused, because the statutes and regulations had not left the master of the “ Khedive” adiscretion in the matter, that he was bound to stop and reverse, and therefore he must be held to be in part responsible. But they so decided because the statute had made that imperative. On the other hand we have the expression of opinion in the case of the “ Bywell Castle” that even if the error of its captain had caused the accident, yet, nevertheless, they would have held him excused on account of the emergency in which he was placed by the wrong conduct of the “ Princess Alice.” In the case of the “ Khedive” the Court of Appeal held that the master of the

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“ Khedive” was excused by the emergency caused by the wrong conduct of the “ Voorwaarts.” The question therefore arises whether there was such an emergency in the present case. Both cars were within a very few yards of one another, and were proceeding at a rate of nearly twenty miles an hour. Apart from stopping his car the driver of the Bergius car could do nothing but deflect to the right to avoid the collision. The collision seemed to be imminent, and the driver had to consider not only his own life but the lives of the three ladies who were his passengers. In those circumstances I think a driver of ordinary skill, nerve, and presence of mind might be very well excused for proceeding to the right, even although the result of that manoeuvre should be to bring about a collision.

“On the whole matter there is no doubt in my mind about the fault of the driver of the Wallace car, whose action was the real cause of the state of anxiety and embarrassment of the driver of the Bergius car which induced him to do the wrong act, and therefore I concur with the learned Sheriff-Substitute in thinking that the defender is entitled to succeed in his claim against the pursuer.”

The pursuer appealed to the Second Division of the Court of Session, and argued— Esto that the appellant's driver was in fault, in respect that he was proceeding along the road on his right-hand side, the respondent's driver was guilty of contributory negligence. When the cars were approaching the appellant's driver steered his car to his own side of the road in sufficient time to avoid a collision, had not the respondent's driver also altered his course—a manœuvre which the respondent's driver ought not to have executed. According to the rule in the “ Test,” 1847 (5 Thornton's notes 276), a vessel ought not to deviate frem her course in anticipation that another vessel will not give way, and that rule applied to the circumstances of the present case. The “agony rule” at sea did not apply to collisions on land, because Admiralty rules were inapplicable to road transit. At sea there was no definite line of approach, and a vessel was an unwieldy vehicle which could not stop without altering its course, thus differing from a motor car. In the present case, which was that of a motor car collision, what the respondent's driver ought to have done was to slow down and blow his horn. In any event the “agony rule” only justified a ship in leaving its proper course if there was some sudden emergency—The “ Bywell Castle” 1879 ( 4 PD 219, per James (L.J.) at 222); Stoomvart Maatshappy Nederland v. Peninsular and Oriental Steam Navigation Company, 1880, L.R., 5 A.C. 876, per Lord Blackburn at 890. In the present case there was no sudden emergency. The action of the respondent's river was due to “an unreasonably alarmed mind,” and was not such as a reasonable and prudent man would have adopted— Jones v. Boyce, 1816, 1 Starkie 493, per Lord Ellenborough at 495.

Argued for the respondent—The appellant's driver was in fault, and there was no contributory negligence on the part of the respondent's driver. The “agony rule” applied to collisions on land. The foundation of the rule was laid in Jones v. Boyce ( cit.), per Lord Ellenborough at p. 494, and that was the case of a collision on land. By the “agony rule” the action of the respondent's driver was justified, inasmuch as a driver was entitled to leave his own proper course if he had a reasonable apprehension of a collision, and if by changing his course there seemed to be a possibility of avoiding it— The “ Bywell Castle” ( cit.); Adams v. The Lancashire and Yorkshire Railway Company, 1869, L. R., 4 C.P. 739, per Montagu Smith (J.) at 743; Wilkinson v. Kinneil Cannel and Coking Coal Company, Limited, July 1, 1897, 24 R. 1001, per Lord Justice-Clerk (Kingsburgh) at 1004, 34 S.L.R. 533, at 535; Huie Brothers v. Clyde Trustees, March 7, 1888, 15 R. 498, per Lord Young at 504, 25 S.L.R. 364, at 366. J. C. Murray v. Wallace, Marrs, & Company, 1914 S.C. 114, 51 S.L.R. 95, was referred to on a point argued by the respondent as to the sufficiency of the appellant's averments with regard to his contention of contributory negligence.