Scottish Court of Session Decisions

Margaret Gibson Law, 24 Battlefield Gardens, Langside, Glasgow, pursuer, brought an action in the Sheriff Court at Glasgow against the Corporation of the City of Glasgow, defenders, for damages in respect of injuries sustained in alighting from one of the defenders' tram-cars on 15th August 1915 at a point where the roadway was in a state of disrepair.

The pursuer averred—“(Cond. 1) The defenders are the Corporation of the City of Glasgow, and they are the local authority charged with the duty of managing, maintaining, and repairing streets and roads within the city of Glasgow, and are responsible for the condition of the same, including that part of Clarkston Road,

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Cathcart, where the accident hereinafter complained of occurred. They have and exercise control of the maintenance and repair of the said streets and roads and the surface thereof, and it is their duty to keep the said streets and roads and the surface thereof in a condition safe for foot-passengers.… (Cond. 3) On or about 15th August 1915 the pursuer travelled as a passenger in one of the defenders' tramway cars from Battlefield Road, Langside, Glasgow, to the stopping station in Clarkston Road, Cathcart, the sign-post of which station was then situated at or near to the kerbstones of the pavement on the east side of Clarkston Road and about 9 yards to the north or north-east of the gate to the Cathcart Cemetery, at or near to which station the pursuer alighted after the car had stopped. The said sign-post has since been removed slightly from the position in which it was then placed. The defenders have the control of appointing and fixing the places at which the said tram-cars stop. It was their duty to select places safe for passengers to alight and to cross the roadway to the pavement.… (Cond. 4) Just as pursuer alighted from the car and had assisted a child to alight she made to go towards the east pavement when her left foot slipped into a hollow in the roadway, with the result that her foot and ankle were suddenly and violently bent to the side. She fell to the ground and collapsed with pain.… (Cond. 5) On said 15th August 1915 and for at least nine months prior thereto the said roadway opposite the said stopping station, and for 20 feet south thereof and 10 feet north thereof, all between the water channel of the east pavement and the causeway setts, forming a margin to the south-going or eastmost tramway lines, was in a dangerous and defective condition in consequence of the surface being broken and uneven. In particular, that part of the said roadway on to which the pursuer stepped when she sprained her ankle, and the roadway for several yards on each side thereof, were at the time of the said accident in a very defective and dangerous condition to foot-passengers, and particularly to passengers alighting or coming from a tramcar at the said stopping station. A few yards to the south-west of the said stopping-place the roadway was causewayed for a short distance, but beyond the causeway and at and around the stopping-place the surface had at one time been macadamised. At and for many months prior to the date of the accident the macadam surface had from lack of repair become broken up into numerous hollows of various depths. About opposite the said sign-post there was an iron grating surrounded by a number of granite setts about two inches above the average level of the said broken roadway. The tramway rails were also bordered by a line of setts which in the then state of the roadway were about two inches above the average level of the said broken macadam. The setts surrounding the said grating adjoin on one side the said setts bordering the tramway rails. At or near the junction of the tramway setts with the grating setts, and in the surface of the macadam, is the said hollow into which the pursuer's foot slipped. The tramway car, in accordance with the said stopping-place, stopped just where the pursuer on alighting would step or slip into the said hollow immediately on leaving the car. Accordingly on alighting as aforesaid she slipped from the relatively higher level of the setts near the said junction of the tramway setts and the grating setts into the said hollow and sustained the said injuries.… (Cond. 7) The accident was due to the fault of the defenders. It was their duty to have the said roadway in a safe condition for the pursuer in alighting from the car and crossing to the pavement. They failed in this duty. They knew or ought to have known of the said dangerous condition of the roadway at the points referred to, and it was their duty to have the same made safe to the pursuer and the public. Further, there was a duty on the defenders to select as a stopping-place a safe part of the roadway. They failed in this duty, and were at fault in selecting as a stopping-place for the cars a place where the roadway and the setts therein were in such relative position and condition as to make a slip or fall when or immediately after alighting from the car a probable occurrence. The accident was due to the defenders' said failures in duty. The pursuer had the right to be where she was on the said roadway. The roadway where the accident took place has since been repaired and causewayed and made uniformly level.”

The defenders pleaded, inter alia, that the action was irrelevant.

On 26th January 1916 the Sheriff-Substitute ( Fyfe), sustaining the defenders' first plea, dismissed the action.

Note.—“The condescendence in this action is constructed as if it were an action against a heritable proprietor for failure to keep his property in a safe condition; but it is not that; it is an action against a public body whose powers and responsibilities must of course depend upon the statutes under which they have the control of the streets. The pursuer avers in a general way that the defenders failed to discharge their duty, but she does not aver what that duty was, nor specifically what their failure of duty was, nor does she allege that any defect in the roadway had been brought to defenders' notice and that they failed to remedy it; nor indeed does the pursuer aver that the roadway was in a dangerous condition, and that it was because it was in a dangerous condition that she was injured. The most that the pursuer avers is that she stepped into a hollow in the roadway, but. I do not think that it necessarily infers fault upon the body which maintains a roadway that its surface is not at every point absolutely level. I do not suppose that any roadway exists, however carefully tended, in which there are no depressions; but these are not necessarily dangerous, and the pursuer here does not set out any circumstances which to my mind reasonably infer fault on the part of the Corporation which led to the pursuer's ankle bending under her, which is all that she says happened. I do not

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think that the pursuer has set forth a relevant action, and I accordingly dismiss it.”

The pursuer appealed to the Second Division of the Court of Session, and argued— Lawrie v. The Magistrates of Aberdeen, 1911 S.C. 1226, esp. per Lord Skerrington, 48 S.L.R. 957, was a direct authority in the pursuer's favour. In that case the dip in the roadway only amounted to 1 1 2 inches, whereas in the present case the unevenness complained of was a hollow 2 inches deep. See also Blackie v. The Magistrates of Leith, 12 S.L.T. 529, per Lord Low. The case should be remitted back to the Sheriff for proof.

The respondents argued—The respondents had a duty to maintain the roadway in a reasonably safe state of repair, but that duty was to be measured by the requirements of vehicular traffic and not of pedestrians. The decision of the Sheriff-Substitute ought to stand.

At advising—