Scottish Court of Session Decisions

The Glasgow Police Act 1866 (29 and 30 Vict. cap. cclxxiii), section 361, enacts—“The proprietor or proprietors of every land or heritage having an access by a common stair shall provide and maintain suitable gas pipes and brackets, lamps and burners, in such common stair to the satisfaction of the Inspector of Lighting or the Magistrates and Council, and placed as the said inspector or the Magistrates and Council may direct … and the Magistrates and Council shall cause them to be supplied with gas and lighted during the same hours as the public street lamps, and for each burner the proprietor or proprietors shall pay to the Magistrates and Council such sum not exceeding ten shillings per annum as the Magistrates and Council may from time to time direct, and the said sum shall be recoverable by the proprietor from the occupiers in proportion to their respective rents, and be deemed to be a debt recoverable as and in the same way as rent.”

Mrs Helen Stewart or Baikie, pursuer, brought an action against the Corporation of Glasgow, defenders, concluding for £300 damages for personal injuries.

The parties averred—“(Cond. 1) The pursuer is a widow and resides at 14 Maitland Street, Cowcaddens, Glasgow. The pursuer's house is situated on the second flat of the tenement of dwelling-houses at said address, and is reached by means of the common stair after mentioned. The defenders are the Corporation of the City of Glasgow, and have an office or place of business at George Square, Glasgow. In terms of section 361 of the Glasgow Police Act 1866 (29 and 30 Vict. cap. 273) the defenders are charged with the duty of supplying and lighting the gas in common stairs at the brackets provided by the proprietors of tenements in Glasgow. The defenders have the entire charge and control of lighting the gas in said common stairs, employ men and equip them with lighting rods for this purpose, and are bound to cause the lights in said stairs to be lighted during the same hours as the public street lamps. ( Ans. 1) Admitted that the stair in question is a common stair and that the defenders are properly designated. The section of the Act mentioned is referred to for its terms, beyond which no admission is made. Admitted that the defenders employ men for the purpose of lighting the gas in common stairs. The averments regarding the pursuer are not known and not admitted. Quoad ultra the Act mentioned is referred to for the powers and duties of the defenders. (Cond. 2) The said tenement of dwelling houses, No. 14 Maitland Street, Cowcaddens, Glasgow, consists of three flats or storeys of dwelling houses above the ground floor. The said houses are reached by a common close entering from the street, and a winding stair leads from the said close to the third floor landing. The said stair is built of stone and consists of three flights with landings at each flat. The first flight, between the street level and the first flat landing, contains twenty steps and is of spiral construction, the turn being to the right as the stair ascends. The stair is unusually steep and there is no handrail or banister on either side. There is a gas bracket with an incandescent burner at the foot of the stair and on each landing. When these are lighted they provide a good and sufficient light for persons making use of the stair after dark. ( Ans. 2) The description here given of the stair in question is admitted generally as correct. (Cond. 3) On Saturday 21st October 1916, about 6·30 p.m., the pursuer was mounting the said stair in order to reach her house, which she had left some considerable time previously. It was dark, and the street lamps were lit. The gas jets in the said common stair should then also have been lighted by the defenders.

Page: 72↓

When the pursuer reached the foot of the stair she found, however, that the gas jet at the foot of the stair had not been lighted. It could not be lighted without a lamplighter's appliance or a ladder. With the greatest caution therefore she proceeded to mount the stair. The other gas jets had not been lighted. The averments in answer are denied. ( Ans. 3) Explained that the gas jet referred to had been lighted by the defenders' servants at or before the prescribed time. Answer 4 is referred to Quoad ultra denied. (Cond. 4) The pursuer had reached the ninth or tenth step when she heard the footsteps of someone descending the stairs. She accordingly stopped in order that there might be no danger of a collision in the dark. The footsteps, however, ceased, the person who was descending having apparently entered a house on the second flat. The pursuer then attempted to proceed. She placed her left foot on the next step to that on which she was standing, believing that her foot was then about the middle of the step. Her foot was, however, in fact, much nearer the right-hand end of the step. The ninth, tenth, and eleventh steps are, at the extreme right-hand end where they join the stair wall, only about five or six inches in width, and are ‘wheeling’ steps, widening to about eighteen inches at the outer or left-hand end. They are the steps which form the first part of the turn on the stair. When the pursuer felt her foot on the step, believing she had got to the turn of the stairs, she proceeded to raise herself, but in so doing came against the end of the stair wall in the darkness, with the result that her foot slipped off the step and she lost her balance and fell back down the stair to the bottom. But for the darkness she would have seen that she had placed her foot on the narrow part of the step, and she would have been able to avoid coming in contact with the wall. The defenders' averments so far as not coinciding herewith are denied. ( Ans. 4) Explained that on the date mentioned the gas jets on said stair had been lighted by one of the defenders' employees at about 5·30 p.m. and were, or should have been, burning at the time of the alleged accident. The extinction of any of these lights, if it occurred, must have been the act of some unauthorised third party, for the consequences of which, if any, the defenders are not responsible. Quoad ultra not known and not admitted. Explained that if the facts were as condescended upon by the pursuer, she ought to have refrained from ascending said stair until the gas had been lighted, or to have provided herself with a light before proceeding to ascend. She was negligent of her own safety in proceeding to ascend said stair as stated, and such negligence caused or materially contributed to the alleged accident. (Cond. 5) The pursuer was very severely injured by her fall. … She has been put to much expense for medical attendance, and the loss, injury, and damage sustained by her, together with solatium for her sufferings, is moderately estimated at the sum sued for. ( Ans. 5) Admitted that the pursuer sustained certain injuries. Explained that these are exaggerated. Quoad ultra denied. (Cond. 6) The pursuer's injuries were due to the fault of the defenders or their servants, for whom they are responsible. It was their duty to have lighted the gas jets in the said stair before 6·30 on said 21st October 1916, by which time it was dark and the public street lamps in the city were lit, but they failed to do so. They failed to fulfil their said duty. But for their said failure the accident to the pursuer would not have occurred, for she would have seen that she was on the narrow portion of the step, and she would have been able to avoid coming in contact with the stair wall, whereby her foot slipped and she lost her balance. ( Ans. 6) Denied under reference to the preceding answers.”

The defenders pleaded, inter alia—“1. The averments of the pursuer being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed…. 4. Any injuries sustained by the pursuer having been caused or materially contributed to by the pursuer's own fault, the defenders should be assoilzied.”

The case was heard before the Lord Probationer ( Sands) and Lord Hunter (Ordinary), and on 16th October 1917 the Lord Ordinary, before answer, allowed to the parties a proof of their averments.

Opinion.—“I agree with the Lord Probationer that this case would be more satisfactorily disposed of when the facts are before the Court.

The defenders do not dispute that the pursuer has relevantly averred fault on their part. That averment, to put it briefly, is simply this, that they failed in the statutory duty laid upon them to light the stair on which an accident occurred to her in consequence of that want of light. They maintain, however, that the case ought to be thrown out at this stage, because it appears very clearly that whatever their fault was, there must have been fault on the part of the pursuer so connected with the accident as to disentitle her to recover damages from them.

I do not say that the Court may not in certain cases be satisfied upon the pursuer's statement that it is impossible for him or her to succeed, and therefore dismiss an action without inquiry. An example of such a case is Driscoll, 2 F. 368. That case was pressed upon me as being conclusive in the defenders' favour. Certainly the circumstances in that case are similar to the circumstances in the present case, but it is impossible, where a decision has proceeded upon averments, to say that one case is a direct precedent for any subsequent case unless the facts are precisely the same. I do not think the facts in that case and the facts in the present case are precisely the same. It does not appear to me that I am bound to hold here that the pursuer, in consequence of the course which she took when the stair was unlighted, was necessarily guilty of contributory negligence—that is to say, that it was really her want of reasonable care for her own safety, rather than the failure on the part of the

Page: 73↓

defenders to fulfil their statutory duty, that was the proximate cause of the accident. It may turn out on the evidence that the defenders' contention with reference to the pursuer's position is well founded, but I think it would be dangerous for me on the record as it stands so to assume at this stage. I shall repeat the interlocutor which I pronounced some time ago, and allow parties a proof of their averments before answer.”

The defenders reclaimed, and argued—The action should be dismissed, as the pursuer's averments disclosed that her accident was the necessary result of her own negligence. No doubt the defenders had a duty to light the stair in question, but that duty was laid upon them not primarily to safeguard those who used the stair, but to prevent offences against decency, and the lights were frequently extinguished by offenders in that respect. Further, the stair was not a public but a common stair. It was the pursuer's own stair, and as a result the circumstances of the accident were analogous to those which would arise if the gas supply of a private house failed and an inmate moving about in the dark sustained an accident. Further, the pursuer averred that but for the darkness in the stair she would have ascertained her precarious position and that she took the greatest care. If she had been taking the greatest care the darkness would not have prevented her from ascertaining her position, for she could have ascertained it by feeling for the sides of the stair. She started into the dark portion of the stair, and accordingly took the risk. She ought either to have procured a light, or if she elected to proceed in the dark she ought to have adopted the obviously reasonable expedient of ascertaining her position by touch. The reasoning in the case of Driscoll v. Partick Burgh Commissioners, 1900, 2 F. 368, 37 S.L.R. 274, applied. Longmuir v. City of Edinburgh (N.R.), 11 Dec. 1914, should be followed. Beattie v. Glasgow Corporation, 1916 (reported on procedure 54 S.L.R. 24), in which an issue was allowed, was distinguished, for no case of unexpectedness was averred. The pursuer had not taken reasonable precautions in the circumstances— Fleming v. Eadie, 1898, 25 R. 500, 35 S.L.R. 422. Gaunt v. M'Intyre, 1914 S.C. 43, 51 S.L.R. 30, was not in point.

Argued for the pursuer (respondent)—The defenders were admittedly in breach of their statutory obligation to light the stair, and were accordingly in fault. The only question therefore was whether the pursuer's averments disclosed that she had been guilty of contributory negligence. Longmuir's case ( cit.) and Gaunt's case ( cit.) were not in point, for in them there was no relevant averment of fault. Further, Driscoll's case ( cit.) and Fleming's case ( cit.) were distinguished, for in them a light could easily have been procured, but in the present case, as the pursuer was returning to and not emerging from her house into the stair, such a precaution could not reasonably be demanded. Further, to prevent the case going to proof the defenders must show that the averments of the pursuer necessarily disclosed that the pursuer was guilty of contributory negligence— Campbell v. United Collieries, Limited, 1912 S.C. 182, per Lord President Dunedin and Lord Mackenzie at p. 186, 49 S.L.R. 140. But in the present case the pursuer averred that she had taken the greatest care. The defenders' argument merely amounted to this, that the pursuer had failed to aver that she had taken certain precautions. The question of contributory negligence ought to be left to be cleared up on inquiry. Fleming's case ( cit.) was not in point, for there inquiry had been allowed.

At advising—