Scottish Court of Session Decisions

Mrs Elizabeth Warnock or Stevenson, 37 Old Dalmarnock Road, Glasgow, with consent of her husband Alexander Stevenson, pursuer, brought an action of damages in the Sheriff Court at Glasgow for payment of £200 for personal injuries against the Corporation of the City of Glasgow, defenders.

The pursuer averred, inter alia—“(Cond. 2) About 3 o'clock in the afternoon of 10th September 1921 the pursuer boarded a tramway car belonging to the defenders which had stopped at or near the stopping place provided at the junction of Green Street and Great Hamilton Street, Glasgow, for the purpose of letting off and taking on passengers. Pursuer boarded said car immediately after several other persons had descended from same, and was followed by other passengers. The conductor of the car, after pursuer had boarded it and while she was standing on the platform at the rear end thereof, gave the driver of the car a starting signal, and then after the car had started in obedience to said signal requested the pursuer to leave the car. The said conductor gave as a reason for his request that the car was overcrowded, but before the pursuer had an opportunity of alighting and when the car was travelling at a high rate of speed, the said conductor forcibly ejected her from said rear platform of the car on which she was as aforesaid then standing, and in doing so pushed her with such force that she fell backwards from the car on to the roadway with great violence, and with the result that she received the serious injuries as after mentioned. (Cond. 3) The pursuer's said injuries were wholly due to the fault and the culpably reckless acting of the defenders' said servant, the conductor of said car, in ejecting her from the car when it was in motion, and in the manner above mentioned. The said conductor was a servant of the defenders, who define the duties of their said servants, and on whose instructions said servants act. It is believed that the duties of the conductors on the defenders' tramway cars are, inter alia,

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to collect fares, to regulate the admission of passengers to said cars, and to see that the number of passengers permitted by regulation is not exceeded and that cars are not overcrowded. The said conductor was on the occasion in question carrying out the duties of a conductor, and acting as he did towards the pursuer he was acting in the course of his employment, although he grossly exceeded what was necessary or proper. (Cond. 4) The pursuer sustained very severe injuries. She fell to the ground with very great violence, sustained severe bruising to the body, injuries to her left arm and injuries to the spine, and a severe nervous shock. Immediately after the accident she was conveyed home and received medical attention. She is still receiving medical attention. She has suffered and continues to suffer great pain as a result of said injuries. Her health has become greatly impaired, and she cannot attend to her household duties. It is feared that the injuries will have permanent effect.

The defenders pleaded, inter alia—1. The averments of the pursuer being irrelevant and insufficient in law to support the conclusions of the summons, the action should be dismissed.”

On 19th January 1922 the Sheriff-Substitute ( Boyd) repelled the first plea-in-law for the defenders and allowed a proof.

“ Note.—The pursuers aver that a tramway car belonging to the defenders having stopped at a stopping place, and certain passengers having left it, she stepped on to the rear platform of the car, followed by other intended passengers. While she was standing there the conductor gave the starting signal, and after the car had started told the pursuer to leave it as the car was overcrowded, ‘but before the pursuer had an opportunity of alighting, and when the car was travelling at a high rate of speed, the conductor forcibly ejected the pursuer from the rear platform and pushed her with such force that she fell backwards on to the roadway and was injured.’ The conductor's duty included regulating admission of passengers and preventing overcrowding, and he was performing his duties and acting in the course of his employment when he ejected the pursuer, ‘but he grossly exceeded what was necessary and proper,’ and was guilty of fault and negligence, for which fault and negligence the defenders are responsible.

Mr Mackenzie for the defenders submitted a long and careful argument that the action was irrelevant, as it appeared from the pursuer's averments that the conductor was guilty of a serious assault, and therefore could not be regarded as acting in obedience to the Corporation or in the course of his duty. He founded on the case of Jardine v. Lang, 13th December 1911, 2 S.L.T. 494, and the authorities there collected. The defenders' rules allowed a conductor to eject a passenger for indecent language or drunkenness but not for overcrowding. It was the conductor's duty to forbid excess passengers entering or to require them to leave, but if they refused his only remedy was to report and have them prosecuted for breach of bye-laws.

The pursuer's agent argued that this, like all other such cases, must be judged of by the facts stated and the averments of duty and fault. These made it plain that the conductor was not acting on his own behalf but in the course of his business. In the case of Jardine v. Lang there were no such averments as in the present case, which was more like that of Hanlon v. Glasgow and South-Western Railway Company, 1 F. 559. The conductor, ‘while discharging what it was within the scope of his duty to discharge, acted under a mistaken notion of his own in such an unjustifiable or careless manner as to render his employer responsible.’ As in the case of Wood v. North British Railway Company, 1 F. 562, the defenders' servant was ‘acting in the course of his employment although he grossly exceeded what was necessary or proper.’

I think that there ought to be inquiry, and I have accordingly allowed a proof.”

The pursuer required the cause to be remitted to the Second Division of the Court of Session.

On the case appearing in the Single Bills, counsel for the pursuer having moved to be allowed to lodge an issue for the trial of the cause by a jury, counsel for the defenders objected to the relevancy of the action and to the allowance of an issue. The issue proposed by the pursuer was as follows:—“Whether on or about 10th September 1921, and at or near the junction of Green Street and Great Hamilton Street, Glasgow, the pursuer was injured in her person through the fault of the defenders, to her loss, injury, and damage?”

The Court having sent the case to the Summar Roll, the defenders argued—(1) The action should be dismissed as irrelevant. An act which it would be unlawful for a master to do, could not be within the scope of a servant's employment— Poulton v. London and South-Western Railway Company (1867) L.R., 2 Q.B. 534; Michael M'Namara v. Brown, [1918] 2 I.R., 215, per Sir James Campbell, C.J., at 221 and 224; Jardine v. Lang, 1911, 2 S.L.T. 494; Ward-rope v. Duke of Hamilton (1876) 3 R. 876, 13 S.L.R. 568; Biddell v. Glasgow Corporation, 1911 S.C. (H.L.) 35, 48 S.L.R. 399. (2) In any event the injuries averred were too slight to warrant a trial by jury, and if the action was relevant it should go to a proof— Monaghan v. United Co-operative Baking Society, [1917] S.C. 12, 54 S.L.R. 211; Greer v. Corporation of Glasgow, 1915 S.C. 171, 52 S.L.R. 109.

Argued for the respondent (pursuer)—(1) The action was relevant. At any rate the question of relevancy was merely a question of degree, which should be left to the jury. At common law a conductor had power to remove a passenger. A master might be liable for a criminal act of his servant— Hutchins v. London County Council, (1915) 32 T.L.R. 179; Whittaker v. London County Council, 11915] 2 K.B. 676; Bayley v. Manchester, Sheffield, and Lincolnshire Railway Company, (1872) L.R., 7 C.P. 415, per Willes, J., at 417;

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(1873) 8 C.P. 148, per Kelly, C.B., at 153; Smith v. North Metropolitan Tramways Company, (1891) 7 T. L.R. 459; Seymour v. Greenwood, (1861) 30 L.J., Ex. 189, per Pollock, C.B., at 191; Dyer v. Munday, [1895] 1 QB 742, per Lord Esher, M.R., at 746; Hanlon v. Glasgow and South-Western Railway Company, (1899) 1 F. 559, 36 S.L.R. 412, per Lord Young at 1 F. 562, 36 S.L.R. 414: Wood v. North British Railway Company, (1899) 1 F. 562, 14 S.L.R. 407; Mackenzie v. Cluny Hill Hydropathic Company, Limited, 1908 S.C. 200, 45 S.L.R. 139, per Lord Low at 1908 S.C. 206, 45 S.L.R. 142. (2) The injuries averred were sufficiently serious to warrant a trial by jury— Taylor v. Dumbarton Tramways Company, 1918 S.C. (H.L.) 96, 55 S.L.R. 443, per Lord Shaw at 1918 S.C. (H.L.) 108, 55 S.L.R. 452.