Scottish Court of Session Decisions

Frances Watt, with consent and concurrence of Thomas Watt, her father, as her curator and administrator-in-law, and Thomas Watt, as tutor and administrator-in-law of his pupil child Robert Watt, pursuers, brought an action against the Corporation of Glasgow, defenders, concluding for decree for £100 in favour of Frances Watt and £250 in favour of Robert Watt as damages for personal injuries.

The defenders pleaded, inter alia—“2. The accident condescended upon not having been caused by the fault of the defenders, they should be assoilzied. 4. The accident condescended upon having been caused or materially contributed to by the fault of the female pursuer, all as condescended upon, the defenders should be assoilzied.”

On 12th June the Lord Ordinary ( Anderson), after a proof, found that Frances Watt and Robert Watt had been injured by the fault of the defenders and were entitled to reparation, and assessed the damages to each at £50.

Opinion, from which the facts of the case appear—“In this action the pursuers are (1) Frances Watt, a young girl of sixteen years, who sues with the consent and concurrence of her father Thomas Watt, a dock labourer in Glasgow, and (2) the said Thomas Watt, as tutor and administrator-in-law of his pupil child Robert Watt. The action is brought against the Corporation of the City of Glasgow as owners of the tramway system in that city, and damages are claimed by or on behalf of the pursuers by reason of personal injuries which they sustained by being thrown from a tramway car in Glasgow.

The legal basis of the action is that the servants of the defenders who were in charge of the car were in fault, and that the accident resulted from that fault. The allegations of fault which are made against the two servants are, as set forth in condescendence 5—that the conductress of the tramcar, whose duty it was to have been in her position on the rear platform as the car approached a certain stopping-station, or at least to have been in such a position on the car as to have seen whether a passenger wished to alight at said stopping-station and to have stopped the car at the stopping-station, was not on the platform, but was on the roof of the car. As regards the other servant Russell, the motoress, the allegation of fault is that in proceeding round a certain curve, instead of slowing down and driving the car round the curve at a moderate speed not exceeding four miles an hour, she recklessly and negligently approached the curve and took it at a high rate of speed.

The accident happened about 1 p.m. on Friday, 19th October 1917, and the place where it occurred was where a street called Byres Road joins another street called Church Street, along which latter street the tramway car had come. The children were thrown from the tramway car opposite a boot shop tenanted by a man named Paterson at 103 Byres Road. There is an uphill gradient in Church Street approaching the curve which I have alluded to, slightly rising in the direction in which the car was travelling, and the curve in question is one of a somewhat easy curvature, the radius being from 140 to 150 feet.

Now two accounts of the accident are given by the witnesses called for the respective parties, and the first thing is to determine which of those accounts is the true one. That depends in great measure on the view which is taken as to the credibility of the witnesses. As regards the girl Frances Watt I must confess that I was quite favourably impressed with the way in which she gave her evidence. She is a young girl of intelligence, and she gave her testimony with candour but at the same time with carefulness, and I considered she gave it with perfect truthfulness. I formed the same opinion as to three independent witnesses who were called by the pursuers—Miss Mohan, Mrs Cullen, and Mrs M'Shane. These three women have no concern with this action. They are not acquaintances of the pursuers or of any members of their family, and they came here, and so far as I can judge, to state with perfect truthfulness what they witnessed on that oceasion.

No attempt was made to impeach the credibility of Miss Mohan, but two suggestions were made by the defenders by way of attacking the credibility of Mrs Cullen and Mrs M'Shane. The first was based on the evidence of Mr Grierson, the tramways engineer. Mrs M'Shane and Mrs Cullen when they first saw the tramway car which was carrying the two children were standing on the pavement at the junction of Wood Street and Byres Road, and in order to see the car when it first appeared coming along Church Street they had to look across a school-yard which is contained within two small parapet walls surmounted by railings, and in which yard a number of trees are planted. It was suggested by Mr Grierson that it was impossible for anyone looking from the point where the two women were stationed to see at all events the platform of a car in Church Street or anyone of the height of the two children stationed upon the platform. But his evidence was given on the basis that the wall I have alluded to containing the school-yard was 3 1 2 feet in height. Now the height of the wall was actually measured by the witness Boyce, an engineer who was brought by the pursuers, and it appears that on the Byres Road it is 24 feet high, and on the Church Street side it is 2 feet high, the difference being accounted for by the fact that Byres Road is on a lower level. Accordingly

Page: 227↓

I have no difficulty in holding that it was possible for two people standing on the Byres Road side to see two children on the platform of the car, which platform is 2 feet above the level of the street. Those women depone that when the car did emerge from behind the school buildings and got opposite the yard they did see the platform and the children standing on the platform, and I have no doubt that in point of fact they are speaking the truth.

The other suggestion which was made by way of impeaching their credibility depends upon the evidence which was given by a police sergeant named White, who stated that when he interviewed those two women shortly after the accident they gave him a different account, which he says, he noted at the time in his book, from that which they gave in the witness-box, and in fact it came to this, that the two women are said to have told the police sergeant, (first) that the car was not travelling at a dangerous rate of speed, and (second) that the driver was not in any respect to blame for the accident. I am satisfied that the police sergeant must have misunderstood what was said by those two women, because they denied yesterday that they gave any such statement to the police sergeant, and I quite accept their testimony on that point. Accordingly the view I take as to these four witnesses is that they are perfectly credible, and I approach a consideration of the evidence on that footing.

The account which the girl Frances Watt gave of the occurrence was this. At that time her little brother Robert, who is two years old, was attending the Glasgow Western Infirmary to receive treatment for one of his hands. Sometimes he was taken there by his mother in the car, but more frequently it was his sister Frances who took him to the infirmary in a car. Her invariable practice was to get off at the stop-if-required station, which is exactly opposite the infirmary gate. It is plainly the nearest station to the infirmary and her evidence is—and it is in accordance with the probabilities of the case—that she always got off at that station. She never went to the next station, a compulsory stopping-station in Byres Road, and no reason is suggested why she should go to that station on the day in question. This young girl was accustomed to travelling in cars, and she says that on this occasion, when the accident occurred, following presumably her usual practice, she, being inside with her brother, began to prepare at Thomson Street to leave the car when it was approaching the stop-if-required station opposite the infirmary gate. She says that she came out just about that point because the conductress was not on the rear platform but was on the roof of the car, and her story is—and it seems a perfectly credible one—that she got out at that point because she knew she was coming to the stop-if-required station, and she thought that if she was to get out she had better take steps to look out and see where the conductress was and give her instructions to get the car drawn up.

But the conductress was not there, and the car ran past the stopping-place opposite the infirmary gate and approached the curve which is a little further on. Now the evidence of the girl is that she and her brother up to this point were standing apart on the platform, she holding his hand, but as the car began to take the curve it was going so fast and began to rock and jolt so vehemently, that she let go the rod which she had been holding to steady herself, and made to take up the boy in her arms, thinking he would be safer in that position. She had just got him into her arms when a more than usually violent jolt occurred, and both were thrown on the street.

As to the speed of the car her evidence is that it had been going more than usually fast when approaching the curve, and the jolts on that curve were more than usual in excess of jolts which she had experienced on other curves. That is her evidence, and she is corroborated in all essential details by the witnesses Mrs Cullen, Mrs M'Shane, and Miss Mohan. The two former witnesses, Mrs Cullen and Mrs M'Shane, deponed that when they first saw the car as it emerged from beyond the school buildings, the two children were standing on the platform. The conductress was not on the platform, but was upstairs, and they say that later on they saw her coming downstairs after the accident occurred. They also corroborate the pursuer as to the high rate of speed at which the car was travelling as it approached the curve, and the recklessness with which it was being driven round the curve. Miss Mohan also spoke to having seen the children alone upon the platform, and she also says that the conductress was not there when the children were thrown off. On the matter of speed, the only other evidence which seems to me to be of importance is a statement which was made by the conductress to Mrs Cullen, and was heard by Mrs M'Shane, to the effect that the accident was caused by the speed at which the car was taking the curve.

The account of the accident given by the defenders—and they depend on the conductress alone for a contradiction of the pursuers' case—is that, as the car approached the first-mentioned stopping-place the conductress was not on the roof but was on the rear platform making up her book. She says the children emerged, the girl carrying the boy, and that the girl had the boy in her arms all the time till they were thrown off. The conductress says, and the driver corroborates her on this point, that the speed was not excessive but quite moderate.

The defenders' counsel referred to certain physical circumstances which rather pointed to the view that the speed of the car could not have been excessive, to wit, that the car was going up a slight hill and that there was an insulator just before the stop-if-required station which had to be negotiated. The way in which these insulators are negotiated is this, that the power is completely shut off dnring the momentary period of time which elapses while the car passes the insulator, but once the insulator is passed the power may be immediately

Page: 228↓

put on to the car. The third physical peculiarity of the locus which was alluded to by the defenders' counsel was that the car was approaching a curve and also a compulsory stopping-place, and therefore it was unlikely and improbable that it would be travelling at a high rate of speed at that time. I have taken all these considerations carefully into account, but I nevertheless prefer the direct testimony which I have received from four credible witnesses to the effect that, despite all those tendencies pointing to retardation of the speed of the car, it was nevertheless going at a rate of speed which in the circumstances I consider to have been excessive. Accordingly I think the pursuer has proved, (first), that the conductress was not on the car platform at this critical time, and (second), that the car was going at an excessive rate of speed.

As to the conductress, I think it is patent that her absence was causally connected with the accident. If she had been there I think it is plain that the accident would not have occurred, because the girl from her position inside the car close to the door could, and would, have instructed the conductress to stop the car opposite the infirmary gate, and she and the little boy would have descended there in safety. Similarly, the rate of speed is of course causally connected with the accident. It was really the efficient cause of the accident, and the cause most intimately concerned with the occurrence.

But then the defenders' counsel maintained that it was not negligence in law for the conductress to be on the roof when the car approached and passed a stop-if-required station, and this ground of defence raises an important and interesting question as to the proper discharge of her duties by the conductress. It is plain that the conductress must go at times upon the roof of the car. She must do that to collect fares from passengers who may be there and who have not paid their fares before ascending to the roof. There is no difficulty as to the proper discharge of her duties in connection with compulsory stopping-places. There is no reason why she should not be upon the roof of the car doing her work there when the car approaches and leaves a compulsory stopping-place. The duty of passengers intending to leave the car at a compulsory stopping-place is to keep their seats until the car stops and then proceed to leave it, and the conductress, if on the roof, is in a position, by looking over the side of the car, to see whether passengers have left it, and when people desire to board the car, if all have entered it. All this being done she then—and in ordinary practice we all know this is done—gives the signal to the driver by ringing the bell or blowing her whistle.

But, then, the stop-if-required station seems to me to be in an entirely different position. The contract of carriage with reference to the stop-if-required station between the corporation and the passenger is this, that, ‘if required,’ the car will be stopped at that station either to allow a member of the public to get on it or to allow a passenger to leave it. This implies a ‘requirement’ or a ‘request’ made to someone. In the case of a person on the street at a stop-if-required station desiring to board the car, a request or requirement is given to the driver of the car by way of a signal from the street to have the car stopped, and this being done the person leaves the street and boards the car. But in the case of a passenger on the car, what happens? There is the passenger on the roof and the passenger downstairs. The passenger on the roof, if the conductress is on the rear platform, who desires to leave the car at a stop-if-required station, must necessarily descend the stair of the car to the rear platform in order to make his request or requirement known to the conductress and have the car stopped.

The passenger downstairs, if the conductress is on the platform, can, of course, make his or her request known to the conductress when there. But if the conductress is not on the rear platform, and a passenger downstairs in the body of the car wishes to get off, what then? Now the conductress admitted in answer to a question I put to her, that she ought to discharge her work in this way, that she should be on the rear platform of the car when it approaches one of these stop-if-required stations. She said that it was her duty to be there at that time, and I am of opinion that that is her duty in law.

The opinion I have formed of the legal situation created by the existence of these stop-if-required stations in Glasgow is just this, that the corporation as carriers are under contract to stop the car if ‘required,’ and must instruct the conductors or conductresses to be on duty on the platforms to receive requests for stoppages as the cars approach these stations, or they must make their minds up to stop the cars compulsorily at all stations. Accordingly I think there was fault in law on the part of the conductress in being absent from the rear platform as the car approached from Thomson Street to the infirmary gate and as it went past that stop-if-required station.

The defenders' counsel further maintained that, assuming fault on the part of the conductress, assuming reckless driving on the part of the motoress, there was contributory negligence on the part of the girl Frances Watt in going upon the platform and remaining there for a period of time. Plainly, if it was negligence on her part to go there, it was contributory negligence, because it was continuous negligence as it continued down to the happening of the occurrence and was therefore contemporaneous with any reckless driving pn the part of the motoress. But was the pursuer negligent in what she did? The legal proposition which I understood to be maintained by Mr Blackburn for the Corporation was that in all circumstances a passenger going upon the platform of a moving car is guilty of contributory negligence. I was asked to affirm that proposition as sound in law, and I was asked to do so because that had been authoritatively decided. The decision relied upon was the case of M'Sherry v. The Corporation of Glasgow.

Page: 229↓

1917 S.C. 150, 54 S.L.R. 178, and three Irish cases which are alluded to in the report of M'Sherry, to wit, Murphy, 1908, 43 Ir. L.T. 11; Martin, 1909, 2 Ir. R. 13; and Breslin, 1911, 45 Ir. L.T. 220.

Now M'Sherry undoubtedly laid down a most useful general rule as to contributory negligence, and that rule will be found in the sentence from the Lord Justice Clerk's opinion which is quoted in the rubric—‘I do not think that any passenger on a car is entitled to ride on the step.’ That is a clear general rule universally applicable, and in my humble judgment a most useful rule and a very proper rule, and I am glad the Court made that perfectly plain and went that length. It is now accordingly conclusively settled that anyone travelling on the step of a car does so at his own risk, and if injury occurs he is debarred from recovering damages by his own contributory negligence. But I do not think the case of M'Sherry decided anything more than that, and I am not going, as I was asked to do, to assimilate the rear platform of a car to the step of a car.

I have already pointed out one set of circumstances in which, in my judgment, a passenger might perfectly legitimately go to the platform of a moving tramway car, to wit, when he descends from the top of the car by the stairway to the rear platform to get the conductress there and have the car stopped at a stop-if-required station. It may very well be, as I think was decided in one of the Irish cases, that if a passenger boards a car that is full with the intention of travelling on the platform, and remains there for the purpose of travelling, that passenger takes all risks, both ordinary and extraordinary, in connection with his journey. It may also be, as was decided in another of the Irish cases, that if a passenger comes from the inside of the car to the platform in the absence of the conductor with the object of pulling the bell and getting the car stopped, he takes the ordinary risks of transit, although it may be that he is not to be held as taking extraordinary risks in these circumstances.

But the present case is different in both respects from those cases. This girl did not come to the platform with the intention of travelling there and taking risks, but for a different purpose altogether. She was precipitated from the car not by an ordinary risk but by a risk which in my judgment was extraordinary. Accordingly I do not think I am bound by any authority to hold as a general proposition that a passenger going upon the platform is necessarily guilty of contributory negligence and I do not think that such can be laid down as a general proposition. Each case must be determined on its own special circumstances.

In the present case, what is the suggestion of the defenders? Apparently it is this, that if a passenger desirous of getting to the Glasgow Infirmary—perhaps in the quickest possible time because the case may be vital—finds the conductress absent when the car has reached the point opposite the stop-if-required station, that passenger is to sit in the body of the car without taking any steps to have the car brought to a stop. In the present case there was a compulsory stopping-station at a very short distance away from the stop-if-required station, but it might have been a quarter of a mile away, But the contention is that that passenger must sit still, or, if the platform is approached, it can only be so approached under the burden of the passenger so acting being held guilty of contributory negligence if anything untoward happens. I must say I cannot assent to that suggestion. I think this girl did as she was entitled to do, and, as the pursuers put it in their pleadings she was ‘properly and justifiably’ at the time of the occurrence on the rear platform. She went there for a proper and legitimate purpose, viz., to find the conductress to get the car stopped as speedily as possible. She took all reasonable precautions for her safety while she was on the platform, as I have stated, by holding on to the rod which was in the centre of the dash-board, and she only let go that safeguard when the excessive jolting imperilled the safety of her little brother. Accordingly I hold on this part of the case, the burden of proof being on the defenders, that they have failed to prove that the girl in doing what she did was guilty of contributory negligence.

The result is that she has proved fault causally connected and directly leading to the accident, and the defenders have failed to prove that she was in any respect to blame. The pursuers must therefore get damages. Fortunately this accident has had a fairly happy sequel. It might have been very serious. Both children might have lost their lives, but they are both, so far as I can see, recovered,—the boy fully recovered, and the girl, if not absolutely recovered, will be so, in my opinion, in quite a short time. The girl has suffered some patrimonial loss. Young as she is she was a machinist earning 15s. a week at the time she was injured, and she was unable to earn any wages for a number of months. She resumed work again last month, but her earning capacity has diminished to the extent of 5s. a week, the reason being that she says she is unable yet to work where machinery is in motion, and she is at present engaged in folding handkerchiefs.

The claim, however, is in both cases practically for solatium, and plainly it is not a case for large damages. I propose to award each child £50.

The defenders reclaimed, and argued—There was no fault upon the part of the conductress in not being on the platform to stop the car at the stop-if-required station. She was not bound to remain on the platform, but was only bound to be on it if she reasonably could. Further, a passenger was only entitled to get off the car at a stop-if-required station if he had made a request to have the car stopped. Till such a request had been made there was no fault in the conductress being absent. But if there was fault in the absence of the conductress it was immaterial, for it was not the cause of the accident. The absence of the conductress merely frustrated the pursuer's intention to alight. The sole

Page: 230↓

invitation to the pursuers to go to the platform was to get in touch with the conductress; when the stopping place was passed that invitation was spent, and they should have regained their seats. If they chose to go on on the platform thereafter for 80 yards they took the risk of such incidents as the cause of the accident, viz., a jerk. The pursuers were therefore guilty of contributory negligence even if there was fault in the absence of the conductress. In any event, it had not been proved that the conductress was absent without reason. Further, it was not proved that the car took the curve at an excessive speed. Consequently the accident was due to the pursuers being jolted off the platform. Even if there was negligence on the part of the defenders, the pursuers were also negligent in being on the platform, and their negligence contributed to the accident— Martin v. The Dublin United Tramways Company, 1909, 2 Ir. Rep. 13; referring to Roscoe v. The Dublin United Tramways Company; Murphy v. The Dublin United Tramways Company, 1908, 43 Ir. L.T. 11; Breslin v. The Dublin United Tramways Company, 1911, 45 Ir. L.T. 220; Hall v. London Tramways Company, Limited, 1895, 12 T.L.R. 611; M'Sherry v. Glasgow Corporation, 1917 S.C. 156, 54 S.L.R. 178; Flockhart v. Leith Corporation, June 1917, n.r.

Argued for the pursuers (respondents)—The evidence showed that the driver took the curve at too great a speed. The conductress was negligent in being absent when the pursuers wished to alight, and that negligence continued and was the cause of the accident. The defenders' duty was to perform their contract with the pursuers, whose tickets entitled them to get off at any station either “all stop” or “stop-if-required” within the limits of the journey for which the tickets were valid. Accordingly the conductress ought to have been available when the pursuers were ready to request her to stop the car. If, however, she might be absent for a reasonable cause, there was no such reasonable cause in the present case; she was on the roof where it was proved there were no passengers, and she gave no reasonable explanation of her absence. Her absence caused the accident; it could not be successfully maintained that the pursuers were not entitled to go upon the platform as a preliminary to alighting. If so, negligence on the part of the pursuers could only have begun after the stopping place was passed, and it consisted in remaining on the platform. But the interval between passing the stop-if-required station and the jerk was almost momentary, and during it the girl pursuer was taking the boy in her arms. Such a short delay was altogether different from riding on the platform, and was too short to lead to any inference of negligence. Further, the car was travelling too rapidly to give the children a reasonable chance to regaining their seats before the jerk occurred. Breslin's case was distinguishable, for in it the plaintiff was travelling on the step. In Murphy's case there was no evidence of a change of speed at the timeof the jerk. Martin's case would cover the present case, but it was wrongly decided.

At advising—