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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wilson v. Glasgow and South-Western Railway Co. [1914] ScotLR 146 (15 December 1914)
URL: http://www.bailii.org/scot/cases/ScotCS/1914/52SLR0146.html
Cite as: [1914] ScotLR 146, [1914] SLR 146
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SCOTTISH_SLR_Court_of_Session
Page: 146↓
Court of Session Inner House First Division.
[
v.
Facts:
An action of damages was brought againsta railway company on averments that a boy, following a companion, who, with the consent of a servant of the company, was operating a luggage lift at a railway station, entered the lift, descended to the platform, and was injured, on ascending, by getting his foot crushed between the edge of the landing and the floor of the cage. The boy was lawfully present on the station at the time, but had no permission to use the lift. Held ( diss. Lord Skerrington) that there being no sufficient averment of neglect properly to fence the lift, or of faulty construction of the lift, and it being irrelevant in these circumstances to aver that it was the duty of the company to exclude from the lift all except those authorised to use it, there was no relevant averment that the company had been negligent in the care of their property, and accordingly that the action against them should be dismissed.
William Wilson, coal merchant, Paisley, residing at Avonbank, Elderslie, Renfrewshire, as tutor to his pupil son William Wilson junior, residing with him at Avonbank aforesaid, pursuer, brought an action against the Glasgow and South-Western Railway Company, defenders, for £1000 sterling, as damages which he alleged had been sustained by the said William Wilson junior through the fault or negligence of the defenders or their servants at Elderslie Station on the defenders' line between Glasgow and Greenock.
The pursuer, inter alia, averred—“(Cond. 2) The said Elderslie Station consists of two platforms erected on the island principle, with a bridge crossing above the said platforms and railway lines. On the said bridge are the booking and station master's offices. The entrance to the station is by means of a sloping way, and by a flight of stairs which lead on to said bridge. The said island platforms are reached by stairs leading from the said bridge. On either side of the said offices on the said bridge there is a hoist connecting the said bridge with each of the said island platforms. These hoists are for the purpose of conveying luggage and goods from the said bridge to the said island platforms. The said hoists, which are hydraulic, are worked by means of chains. The cage of the northmosthoist after mentioned is about 7 feet in height and about 5 feet in width. (Cond. 3) About 5·30 or 6 o'clock in the evening of Tuesday, 13th January 1914, the said William Wilson junior had gone to Elderslie Station to meet his father on the latter's return home from business. The said William Wilson junior was in the habit of going to the station almost every evening to meet his father, and on this occasion while waiting the arrival of the train from Paisley, he was standing, as he usually did, at the head of the stairs on the said bridge, and immediately opposite the booking office. (Cond. 4) As the said William Wilson junior was waiting for his father on the date mentioned a boy called James Stafford came forward and entered the northmost of the said hoists with a barrow and parcel on it, which he was taking down to the platform below, and the said William Wilson junior also stepped on to the cage of the hoist. They reached the platform all right, but on the return journey the right leg of the said William Wilson junior was caught and jammed between the floor of the cage and
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the edge of the landing on the bridge as the cage approached the latter, and so severely injured that it had to be amputated considerably above the knee. (Cond. 5) The said accident was caused by the fault or negligence of the defenders or of their servants for whom the defenders are responsible. The cage of the hoist in question was not fitted with a door or gate which when shut would prevent the public entering the cage. It ought to have had such a door or gate, and the same ought to have been shut when the hoist was not in use or properly attended to. The upper gate which shuts off the well of the hoist was always automatically raised along with the cage, and closed when the said cage was lowered, and was thus open when the cage was at the top. Consequently the cage was left invariably open, and was in fact open on the occasion in question, viz., on the date and hour mentioned in Cond. 3. Further, the operating gear of the hoist was unprotected, and the hoist could be put in motion by any person caring to do so. It was the duty of the defenders or their servants to see that the public had no access to the said cage or the said hoists or to the operating gear thereof, and to prevent these being used by anyone except the defenders' servants. No precautions to insure this were taken. The defenders' servants were well aware that persons and young people were in the habit of going on said lift and using it, but they took no means to prevent this. The open access to the said cage and the unprotected condition of the operating gear constituted a danger to the public, and in particular to children. It is believed and averred that it was at the request of Michael Hayes, a porter in the defenders' employment, that the boy James Stafford, who was not a servant of the defenders, took the barrow and parcel down on the hoist on the said 13th January 1914. The said Michael Hayes on said occasion saw, or ought to have seen, the said William Wilson junior at or near the entrance to the cage of the said hoist, and ought to have warned the said William Wilson junior away from the said hoist. His failure to do so led to the said accident. Prior to the accident in question boys were in the habit of going down in the cage of the hoist with parcels for the defenders' servants, or of going down and returning for their own amusement, with the knowledge of the defenders or their servants, and in the latter case without their being challenged or forbidden to do so. The said hoist, and the freedom allowed by the defenders to young boys to make use of the same unattended by the defenders' officials, and the open condition of same as above stated, formed a dangerous attraction and a trap to young people. (Cond. 6) Further, the said hoist is so constructed as to also entail risk and danger to anyone using it. The front edge of the floor of the cage as it approaches the landing on the bridge is about 6 inches away from the wall of the well, while the landing itself projects beyond the face of this wall about 5 inches or 5 1 2 inches. If an occupant of the cage allowed his foot to project, as the pursuer's son did, beyond the front edge of the cage it would be crushed just before the cage reached the level of the landing on the bridge. If, as the defenders should have seen was the case, the floor of the cage had fitted the well properly, and had come level with the bridge without any projection therefrom, the accident to the pursuer's son would not have happened. It is believed and averred that since the date of the said accident the said projection has been altered by the defenders with a view to rendering a repetition of such an accident unlikely.” 3 4 The defenders averred, inter alia—“The hoist is of recent and usual construction, and is of modern and approved design. It is intended only for the conveyance of goods, and is in every way fitted for that purpose. The method whereby the upper gate is raised as the hoist rises is one usually found in such hoists, and is convenient and safe. The operating gear of the hoist is at the side, and to get at it it is necessary to put the hand through an opening in the framework of the cage. This is the universal method employed. The defenders' servants take every reasonable precaution to prevent the hoist being used by unauthorised persons. William Wilson junior had no right to enter the hoist, as he well knew, and in doing so he was trespassing. The station staff had warned him on previous occasions not to enter the hoist. Properly constructed stairs are provided for the use of persons descending from the bridge to the platform.”
On 3rd November 1914 the Lord Ordinary (
Anderson ) approved of the issue proposed by the pursuer, and appointed a day for the trial of the cause.Note.—This is an action of damages at the instance of William Wilson, coal merchant, Paisley, as tutor to his pupil son William Wilson jun., against the Glasgow and South-Western Railway Company, and the pursuer craves damages from the defenders in respect of certain injuries which his son, the said William Wilson jun., sustained at the railway station at Elderslie, Renfrewshire, the property of the defenders. At the time of the injury, the pursuer states, his son was between seven and eight years of age.
At Elderslie Station there are two platforms constructed on the island principle, with a bridge crossing above the platforms and the railway lines. The bridge is accessible to the public, and is indeed much used by the public, because upon it are the booking-office and the stationmaster's office. In addition to these there are hoists which are used for the purpose of transferring luggage from the bridge to the said island platforms. The boy was injured by one of the hoists in circumstances to which I shall advert in a moment. The averment of the pursuer regarding the hoist is that when the hoist is stationary at its upper point, namely, upon the bridge, there is no obstacle to prevent persons in the vicinity of the hoist from entering it if they choose.
The circumstances under which the boy was injured are these—On the date in question,
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the 13th of January of the present year, he was at the station, on the bridge, for the purpose of meeting his father, who was coming from Paisley by railway. He saw a boy, James Stafford, in the hoist, and about to operate the mechanism in order to cause the hoist to descend to the platform with some luggage. As there was nothing to prevent him, and no servant of the defenders took any objection to his going into the hoist, he went down with Stafford to the island platform. Shortly afterwards he returned in the hoist with Stafford to the bridge, and just as the hoist was coming to rest at the bridge the boy's right foot was caught between the platform of the hoist and a projecting portion of the bridge, and he sustained the injury for which damages are craved. The case which the pursuer makes against the defenders is this—He says that the boy was on the bridge and in the vicinity of the hoist with the rights at all events of a licensee. He says something more than this, to which I shall advert in a moment. But the case which he does make is that the boy being there with the rights of a licensee was allured or attracted by the unprotected hoist, that that allurement was a dangerous one, and that it was in consequence of these circumstances that he sustained the injury complained of. If that had been the pursuer's only case I think he has a relevant action, on the authority of the well-known case of Cooke, 1909 AC 229, in which the circumstances are, in my judgment, similar to those in this case. In that case the child who was injured was held to be at the turntable which occasioned the injury by the leave or licence or permission of the defenders, the Midland Railway Company, Ireland.
But this case goes, in my judgment, further than Cooke's case. The pursuer, as I read the averments in the record, not only avers that the boy was in the vicinity of the hoist with the rights of a licensee, but he avers that he was in the hoist with the rights of a licensee, because what he says in two passages is this—‘The defenders' servants were well aware that persons and young people were in the habit of going on said lift and using it, but they took no means to prevent this. And further down—‘Prior to the accident in question boys were in the habit of going down in the cage of the hoist with parcels for the defenders' servants, or of going down and returning for their own amusement, with the knowledge of the defenders or their servants, and in the latter case without their being challenged or forbidden to do so.’ Accordingly we have here a case going much further than the case of Cooke, because here we have an averment, which I must at this stage hold will be substantiated by evidence, that the defenders permitted or gave leave or licence to those boys to ride on this hoist for their own amusement.
If that be so, the only other point is whether the pursuer has relevantly averred that this hoist was a dangerous machine. It is well settled that a licensee is entitled to be protected from danger which is known to the owner of the machine but which is concealed from the licensee. What the pursuer says about the hoist in condescendence 6 is this—He says that it was constructed in this way, that there was a space of some 6 inches between the floor of the hoist and the wall of the well while the hoist was in transit between the station platform and the floor of the bridge; and then he says that just as the hoist reached the level of the bridge the floor of the hoist engaged with a projection from the bridge into the well of the hoist, and he says that the lad's foot was caught between the floor of the hoist and this projection.
“I think it is a question for the jury whether that was not a trap in which the danger was concealed from a boy of the age of seven years, and whether the construction was such that the defenders ought to have anticipated that a boy using the hoist might project his foot into the space beyond the floor of the cage, and that when the foot was projected it might be caught and crushed when the floor of the cage engaged with the projection. I say it is for the jury to determine whether that was not a danger, whether it was not concealed from boys of tender years, and whether the defenders ought not, if they choose to allow their property to be used by boys for their amusement, to have taken steps to protect the boys from danger. I approve of the issue as amended.”
The defenders reclaimed to the First Division, and argued—The pursuer had averred no relevant ground of action. The defenders owed no duty towards the pursuer. The proximate cause of the accident was the use of the lift by the boy Stafford, which it was not averred was unlawful. There was therefore no averment of the presence of a trap. A railway station was not a naturally safe place where the same standard of safety could be expected as elsewhere. There was no invitation extended to the pursuer, who at most was merely in the position of a licensee on the station premises; but in such a case the sole duty was to render the premises safe to a person using reasonable care, which the pursuer had not here used— Latham v. R. Johnston & Nephew, Limited, [1913] 1 KB 398, Far-well (L.J.) at 404, 408, Hamilton (L.J.) at 413. To infer liability in such circumstances there must be present ( a) a danger,( b) something in the nature of an allurement— Cooke v. Midland Great Western Railway of Ireland, [1909] AC 229, Lord Macnaghten at 236, Collins (L.J.) at 241. Failing these elements the only duty was to obviate any concealed danger— Burchett v. Hickisson, 50 L.J., C.P. 101. In Scotland no higher duty lay towards a child licensee than to an adult— Grant v. John Fleming & Company, Limited, 1914 S.C. 228, Lord President at 232, Lord Mackenzie at 238, 51 S.L.R, 187; Stevenson v. Corporation of Glasgow, 1908 S.C. 1034, Lord Mackenzie at 1046, 45 S.L.R. 860; Holland v. Lanarkshire Middle Ward District Committee, 1909 S.C. 1142, Lord Kinnear at 1149, 46 S.L.R. 758.
Argued for the pursuer (respondent)—A
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distinction fell to be drawn between property in an active and property in a passive condition— i.e., between property which had or had not its natural features interfered with. Though in the former case many obligations arose, in the latter there was no duty on the owner to one who was on the property by mere permission. In this respect Cooke v. Midland Great Western Railway of Ireland ( cit. sup.) was distinguished from Latham v. R. Johnston & Nephew, Limited ( cit. sup.), inasmuch as in the former case the turn-table represented property in an active condition—Lord Macnaghten at p. 236, Lord Atkinson at p. 238, Lord Loreburn (L.C.) at p. 242. By this classification Burchell v. Hickisson ( cit. sup.). Grant v. John Fleming & Company, Limited ( cit. sup.), Stevenson v. Corporation of Glasgow ( cit. sup.), and Holland v. Lanarkshire Middle Ward District Committee ( cit. sup.) all fell under the head of property in a passive condition, whereas the present case concerned property in an active condition. In the latter circumstances an injured party might recover damages even though his own misconduct had contributed to the accident— Lynch v. Nurdin, [1841] 1 Q.B. 29, Lord Denham (C. J.) at 35, 36. At advising—
At the spot in question the line of railway passes below the level of the land and the road on both sides of the railway, and a bridge spans the line at the station. On that bridge is found the booking office and the stationmaster's office. From that bridge there is found suitable access to the platform for foot-passengers, but in order to convey goods and parcels from the station to the road, and from the road to the station, there are two luggage lifts placed on the bridge. These luggage lifts when level with the bridge are open; when they reach the platform with goods or parcels the opening to the lift on the bridge is automatically closed.
On the occasion in question the unfortunate boy was, I assume, quite lawfully on the bridge—in other words, in the immediate precincts of a station for goods and passengers. It appears that it was the custom of the Railway Company to permit people who had goods or parcels to be taken to the station to work the luggage lift themselves and so convey the goods from the bridge to the station. On this occasion a lad named James Stafford came with a barrow and a parcel and was invited, it is said, by Hayes, a servant of the company, to take the goods from the bridge to the station. The lift was open. Stafford entered with his goods and operated the lift successfully to the bottom, and then came up again. Before he started, however, this boy, who was, I repeat, quite lawfully there, went into the lift and accompanied Stafford to the bottom. But, unfortunately, when they reached the top, coming back, the little boy had placed his foot outside the platform of the lift, and by consequence it was crushed between the platform and the projecting ledge at the bridge, which closed the gap between the platform of the lift and the wall of the lift.
Now the lift, it is noticeable, is not said to be of unusual construction, and, except in one minor particular, to which I shall presently allude, is not said to have been defective in any way in construction. The fault which is alleged against the company—a fourfold fault—is as follows—First, it is said that when the lift was at the level of the bridge it ought to have been closed by means of a gate so as to exclude anybody except the servants of the company or anybody authorised by them from using or entering the lift. That allegation of fault, however, is answered by the pursuer himself, who says that “the upper gate which shuts off the well of the hoist was always automatically raised along with the cage, and closed when the cage was lowered, and was thus open when the cage was at the top.” And he does not go on to aver that this was an unusual or faulty arrangement. Indeed it seems to have been inevitable that when the lift was at the station level the opening to the lift on the bridge was closed, but when it was at the bridge level then it was open. However, that averment is really not relevant in the circumstances of the present case, because confessedly the opening to the lift must have been at this particular time free to anybody—for James Stafford had to get in with his goods.
The second ground of fault is that the operating gear was unprotected and the hoist could have been put in motion by anybody caring to do so. It is not said that that is an unusual or faulty method of construction, and once more it is not relevant, because it is not said that the little boy set the operating gear in motion at all, and I think we all know quite well that if you have access to the lift, access to the operating gear is never shut off.
But (third) it is said that the construction was faulty in respect of the interval between the edge of the platform of the lift and the wall of the lift. There was a gap of some six inches. Once more the answer is that, according to the pursuer's own averment, the method of construction was such that there must have been a gap there, and it is not alleged that there is anything unusual or faulty in that method of construction. It may quite well be that the gap has been obviated in some way since the date of this accident. I cannot comprehend how it could be so, but I assume that it was so. That, however, would not infer fault against the defenders unless it is alleged that the gap, such as it is, was unusual and faulty.
There is left, therefore, only one other ground of fault, and that is, that be it that the gateway was properly open, be it that the construction was without fault, nevertheless the defenders' company should have seen to it in some way that nobody was
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I forbear using any of the expressions which are so common in the English cases, because frankly I do not understand them, such as “invitee” and “licensee.” I am very well content with what Lord Justice Hamilton— Latham v. R. Johnston & Nephew, Limited, [1913] 1 KB 398, at p. 413—calls “the general rule,” as old as the year 1773, “that a person who in neglect of ordinary care places or leaves his property in a condition which may be dangerous to another, may be answerable for the resulting injury, even though but for the intervening act of a third person”—to wit, Stafford in this case—“that injury would not have occurred.” If I had thought that the company here were guilty of lack of ordinary care by leaving their property in an unsafe condition, I should have agreed with the Lord Ordinary and sent this case to a jury; but it appears to me that it falls altogether outside the rule which was laid down—and altogether outside the facts which were found—in the case of Cooke v. Midland Great Western Railway of Ireland, [1909] AC 229, pressed upon us by Mr Cooper, where I think Lord Macnaghten very accurately expresses the general conclusion in nontechnical words thus—“Persons may not think it worth their while to take ordinary care of their own property, and may not be compellable to do so; but it does not seem unreasonable to hold them, if they allow their property to be open to all comers, infants as well as children of maturer age, and place upon it a machine attractive to children and dangerous as a plaything, they may be responsible.”
In this case I think the company were not lacking in ordinary care of their property. I cannot see what better care they could have taken of it than they did take. Nor did the company place upon their property a machine that was attractive to children or dangerous as a plaything to children; and whilst therefore I accept all the law which the Lord Ordinary lays down in the very careful opinion appended to his interlocutor, my answer is that it has no application to the facts of the case before us. These facts, as disclosed by the pursuer, set out no relevant ground of liability on the part of the defenders, and therefore I am for recalling the interlocutor of the Lord Ordinary and dismissing the action.
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Accordingly the only question which we are called upon to consider at this stage is whether it is relevantly averred that the defenders were in fault for permitting this young child to be upon the lift on the occasion in question. The pursuer alleges that “it was the duty of the defenders or their servants to see that the public had no access to the said cage or to the said hoists or to the operating gear thereof, and to prevent these being used by anyone except the defenders' servants. No precautions to ensure this were taken.” According to my own experience at railway stations the public are strictly excluded from luggage hoists and are not allowed to use them. The pursuer undertakes to prove that the system adopted by the defenders at this particular railway station was dangerous, and that the only safe method is to allow no one to operate a luggage hoist except one of their servants—all passengers, and particularly all children, being strictly excluded. I do not see why the pursuer should not be entitled to prove that his accident was due to this dangerous system, leaving the defenders to prove if they can that he was guilty of contributory negligence. But the pursuer goes further, and offers to prove that the defenders' servants allowed young boys like himself to go up and down in the hoist for their own amusement. If that averment is true, such of the defenders' servants as knew of the practice incurred a grave moral responsibility, and as at present advised I do not see why they may not also have incurred a legal responsibility, and one which would result in liability on the part of the Railway Company. The concluding averment of cond. 5 is that “the said hoist, and the freedom allowed to young boys to make use of the same unattended by the defenders' officials, and the open condition of the same as above stated, formed a dangerous attraction and a trap to young people.” That is rather cumbrous language, but what is intended to be averred is clear enough, namely, that this boy who had been in the habit of frequenting this station almost every evening for the purpose of meeting his father had come to know that boys and others were allowed to use this hoist without objection by the Railway Company's servants, that it was perfectly open to go into the hoist—there being no door to it—and that accordingly he was attracted to enter the hoist and to go up and down—a thing which any child would enjoy doing. The question of law, to my mind, is whether the defenders unnecessarily and unreasonably exposed this child to the danger of losing his limb, and I respectfully think that the pursuer has stated a relevant case for inquiry before a jury.
The Court recalled the interlocutor of the Lord Ordinary and dismissed the action.
Counsel for the (Defenders) Reclaimers— Macmillan, K.C.— D. Jamieson. Agents— John C. Brodie & Sons, W.S.
Counsel for the (Pursuer) Respondent— Cooper, K.C.— Armit. Agents— Lister Shand & Lindsay, S.S.C.