Scottish Court of Session Decisions

At advising on 3rd July 1941,—

LORD PRESIDENT (Normand).—The decision in this case, as the argument showed, depends on one simple issue of fact, whether the railway carriage door on the offside of the train through which the deceased boy fell was opened by his inadvertent pressure on the handle when he was in the act of throwing out of the window silver paper which he had removed from a piece of chocolate. There was no suggestion that he had opened the door deliberately, or that the door had been opened by the act, deliberate or not, of anyone else in the railway carriage. The pursuer's counsel relied on the evidence of the boy's mother and of three other women in the carriage, who were accompanying their children on the same journey, that the boy had not interfered with the handle. The defenders relied on the

guard's evidence that he had inspected the outside handles of the doors before the train left St Enoch's Station and found them all in the closed or horizontal position; on the evidence of a more casual inspection by another railway servant at the same station; on the evidence of their technical witnesses that the door and its hinges and lock were found after the accident to be in good order, and that, if the door, when the train left St Enoch's, was improperly closed so that the tongue of the lock was on the outer side of the safety catch, it must have swung open at a very early stage of the journey and long before the train had travelled 26 miles, as it did before the accident occurred. On that evidence they maintained that it was impossible for the door to open where it did without interference by someone in the carriage. The defenders' counsel also criticised the evidence of the four witnesses who were in the compartment. Their evidence was, it was said, merely negative—that they had not seen the boy touch the handle—none of them were at the moment in a position to observe the handle, and one of them in her cross-examination said that on the journey and before the accident the inside handle was in the vertical position, from which it would necessarily follow that the door was properly closed with the tongue of the lock in the slot.

The learned Sheriff-substitute, after stating the undisputed facts of the case, outlined the evidence on either side clearly and fully, subject to two criticisms to which I shall return. He says that he realised that much would turn on the evidence of the witnesses in the compartment, and on that account he set himself to watch with particular care the manner in which they gave their evidence. He leaves us in no doubt about the impression which they made on him, for I find this emphatic passage in his note. "I am bound to say that their whole demeanour in the witness-box impressed me greatly. I felt convinced that they were witnesses whose credit I could place reliance on. I am satisfied that they were telling the truth when they all stated that neither the pursuer's boy nor anyone else in that compartment touched or interfered with the inside handle of the door which opened, and that from the moment of their entering the compartment until the happening of the accident. The result of that is that I am bound to hold that no one in that compartment was responsible for the door swinging open when it did. In reaching this conclusion I took into account discrepancies in the evidence of the pursuer's witnesses." Of the discrepancies in the evidence of these witnesses, by far the most important is that relating to the position of the inside door handle. Mrs Speirs, in the passage already noticed, places it in the vertical position, but, in re-examination and in reply to certain leading questions, she says that she was not paying particular attention to the position of the handle, and it might quite well have been in the horizontal or open position. Mrs Docherty, in a not very clear passage of her cross-examination, appears to say that the handle was in a horizontal position, which might be consistent either with the door's being wholly unsecured or with its being held by the safety catch. I should have liked to have had the learned Sheriff-substitute's views on this point more fully stated, but I think it must be taken that he saw good reason to accept Mrs Speirs's disclaimer of any real knowledge of the position of the handle, although it is usually perilous to rely on a witness's assent to leading questions in re-examination. The other point on which I could wish that the learned Sheriff-substitute had expressed himself more definitely is the defenders' evidence that the door, if not secured at St Enoch's, must have flown open long before the train travelled 26 miles. Counsel for the pursuer met this evidence by the argument that the matter is one of degree, and that, while in most cases the door would open within a comparatively short distance, that cannot be universally predicated. It is significant that the accident occurred at the point when the train was travelling at 55 miles per hour, the highest speed attained on the journey. Moreover, this evidence depends on the door being so insecurely shut that not even the safety catch was or could be engaged, and the defenders, if they were to exclude the possibility of the door opening except by interference from the inside, ought to have shown that there was no practical possibility of the tongue of the lock sticking from the temporary presence of dirt, for example, so that it could not engage the slot, even when the door was fully closed. In considering these points, and also the value of the evidence that a proper inspection had been made of the door handles on the offside of the train at St Enoch's, the Court is bound to bear in mind that railway carriage doors have been known to open, as indeed the reported cases show, although they were equipped with locking arrangements which generally worked well, and although the usual inspection had been made before the train left the platform. A railway company has a difficult task when it attempts to prove that an accident of this kind must be held to have been caused by the interference of someone in the train merely by evidence that its equipment and system of inspection are so near perfection as to make such an accident well nigh impossible, unless there is interference by a passenger.

The defenders' general criticisms on the evidence of the four women who were called for the pursuer, though forcibly urged, are not, I think, destructive. The evidence is not wholly negative in character. It is positive to the extent that each witness describes the boy as using both hands, the right hand holding the paper which he was throwing and the other holding the chocolate. I find it difficult to think that a boy of eight, so occupied, could open the carriage door by inadvertent pressure on the handle. The handle was on his left, and in the fully closed position it would itself incline a little towards the left. Pressure directly downwards would have no effect; there must be a pull towards the right and then downwards, and this pull must be equivalent to a force of some 11 pounds. The boy's mother, at least, was in a good position to see what happened; the boy was close to her, being just at her knee, and the door handle was also close to her. The fact that she was replacing some things in her bag would not prevent her from observing a movement of the boy's hand to the door handle, if it occurred. The other witnesses were farther off, and the boy or his mother may well have been between them and the door handle, but their description of the boy's actual position and movements are not easily reconcilable with the kind of movement and pressure which would be required to open the door.

There is also a minor matter to which I must refer. The defenders founded on a click which was heard when the door flew open, and maintained that it could only be caused by the tongue of the lock as it passed the safety catch position while the handle was held down. Unfortunately for this argument, it was demonstrated to us that a click could be caused by what is called the snib, a part of the mechanism of the lock which is necessarily released when the door flies open, even when the tongue of the lock being wholly disengaged makes no sound like a click.

On the simple issue of fact, I do not find in the evidence anything which satisfies me that the learned Sheriff-substitute arrived at a wrong conclusion. He had the advantage, denied to us, of seeing the witnesses and of judging of their truthfulness and accuracy, and I accept his decision without reluctance or hesitation, although the issue is debatable and certainty is impossible.

It is now settled by authority that the opening of a railway carriage door, when the train is running and without the interference of passengers, is prima facie evidence that the railway company's servants failed to take due care to see that the door was securely fastened when the train left a previous station—Gee v. Metropolitan Railway Co ., Richards v. Great Eastern Railway Co ., Burns v. North British Railway Co . In the present case we are concerned with the door on the offside of the train, and the only probable way in which the accident can be explained is that the inspection at St Enoch's failed to discover that the external door handle was in the open position, or that, after the inspection, the door was used by one of the company's servants who failed to close it properly. The prima facie evidence of negligence is not met by any counter evidence from the defenders of interference by third parties. The consequence is that we must hold the defenders' negligence to have been the cause of the accident.

The learned Sheriff-substitute in his note refers at considerable length to the cases in which the maxim res ipsa loquitur is expounded. In my opinion that maxim does not properly apply. I have in a recent case expressed my opinion on the scope and usefulness of the maxim, and I do not propose to repeat what I then said. I will only say that, in my view, this maxim has a certain utility when an accident occurs at a moment when the thing which causes the injury is outside immediate human control. When that condition is not present, it is better to avoid the expression res ipsa loquitur, and to consider whether the facts and

circumstances proved are prima facie evidence of negligence and affect the onus of proof. It may be that this is merely a matter of phraseology, but the truth is that the words res ipsa loquiturare sometimes used as if they possessed a magical power to solve difficult questions of negligence. The learned Sheriff-substitute has not erred in substance, but I think that, if he had relied less on the Latin maxim, he would have seen the necessity of an express finding of negligence in that the defenders had failed to close and properly fasten the door or to see that it was properly closed and fastened before the train left St Enoch's station, as it was their duty to do. That finding is clearly implied by the Sheriff's note, and it should find a place in the interlocutor. On the other hand, findings 17 and 18 should be stated as findings in fact and law rather than as findings in fact. With these alterations I think that we should affirm the findings.

The defenders maintained that the award of damages was excessive. They argued that £300 was in any case an excessive award for solatium for the death of a child; and they also said that the learned Sheriff-substitute had assumed without evidence that the pursuer was specially attached to the boy because he was stone deaf. I shall lay down no scale of awards for solatium. The appropriate amount must depend on circumstances, and I think it is relevant to take account of the child's age and of any circumstance which would naturally tend to increase the parent's sympathy and affection for the child. When solatium is awarded by a jury, it is a working rule that the Court will not interfere unless the award is so excessive as to be in the region of twice what a reasonable jury might award. The case was not tried by a jury, but I think that it would be most unwise for the Court to interfere with an award for solatium made by a Sheriff or Judge unless it was satisfied that the amount was wholly unreasonable. In the present case certainly I am against any alteration of the award.

LORD FLEMING (read by Lord Carmont).—I have felt more difficulty than your Lordships in this case, but I have ultimately come to the conclusion that we ought to affirm the judgment of the Sheriff-substitute in favour of the pursuer. The point which has given rise to doubt in my mind arises mainly from the evidence given by the witness Mrs Speirs. According to her evidence as recorded, in reply to a quite general question put by the crossexaminer she said that she saw the inside handle in a vertical position. If this evidence correctly represented the position of the inside handle at any stage of the journey, it would seem to be completely destructive of the whole case made by the pursuer. It is true that in re-examination she apparently retracts this evidence, but no satisfactory explanation is given of this retraction which was made in answer to a series of leading questions. In ordinary circumstances I should not have been disposed to attach any significance to a retraction so made, but here the Sheriff-substitute had made it clear that he felt entitled to rely strongly not only on the credibility of the pursuer's witnesses but also on the accuracy of their observations.

With the exception of the incident to which I have been referring, the pursuer's evidence, taken as a whole, seems quite satisfactory and consistent, and I may say that, apart from the testimonial given to it by the Sheriff-substitute, it impresses me favourably. The Sheriff-substitute has unfortunately, as I think, not dealt with this point, and we therefore do not know on what grounds he considered he was justified in ignoring it. While I cannot resist feeling that this matter is left in a rather unsatisfactory position, I have come to be of opinion that it cannot prevail against the otherwise formidable body of testimony adduced by the pursuer and accepted as entirely reliable by the Sheriff-substitute. I am therefore prepared to concur in the judgment proposed. I also agree that it would not be proper for us to interfere with the award of damages made by the Sheriff-substitute. I would merely add, however, that, while the working rule to which your Lordship has referred probably gives quite satisfactory results in most cases, it is merely a rule of a general character and cannot necessarily be held to be applicable in all cases.

LORD MONCRIEFF .—I agree with your Lordships and have no difficulty in holding on the evidence that the decision of the learned Sheriff-substitute ought to be affirmed. I do not, however, find myself able to adopt the reasoning which bases that decision on an application of the doctrine of res ipsa loquitur. It may, indeed, now be regarded as settled that the unexplained opening of a railway carriage door in course of travel affords prima facie evidence of negligence on the part of whoever may have been responsible for the closing of the door. When the door which opens has in fact remained under the sole control of the company or its servants up to the moment of opening, the single fact of its unexplained opening may thus per se be relevant to infer negligence against them: and so to operate in a manner analogous to cases of res ipsa loquitur by itself transferring the onus of proof. Even in such a case, however, there will be at most an analogy with, and not a proper example of, an application of the maxim. In the present case, on the other hand, there is found to have been no continuity of any single control of the door. Control by the defenders must be taken to have ended at latest on the conclusion of the last inspection at St Enoch's, while subsequent control (after the few minutes in the station during which not only railway servants and passengers but even strangers may have had access to the carriage) must be found to have passed to the group of passengers in the compartment, of whom the boy who lost his life formed one.

I may say that this transfer of the control of the door to the occupants of a railway carriage during the journey is not, in my view, in any way dependent upon whether an inside handle has or has not been fitted. In all cases in which the carriage door has not actually been locked, I regard the door of each compartment as being under the sole control of the passengers during the journey, even when that door can only be opened by means of an outside handle. The only distinction appears to be that, in this latter case, any act of exercise of control will be more easily observed.

In a case such as the present, in which the defenders ceased to be in control of the door before the commencement of the journey, the unexplained opening of the door, while still relevant prima facie to infer negligence, is thus in no way relevant even prima facie to infer negligence for which the defenders are responsible. The res, or if it be preferred the res ipsa, is thus unavailing to transfer the onus of proof; the doctrine or maxim does not apply; and the pursuer must, as in other cases, undertake the whole burden of proving his case. In discharging that burden he may, however, rely as part of his proof on the opening of the door as affording prima facie evidence of negligence; and may complete his proof, and either bring that negligence directly home to the defenders or in turn charge them to acquit themselves of negligence by having resort to the familiar method of exclusion. It is this method which the pursuer has followed in this case, and I agree with the learned Sheriff-substitute and with your Lordships in finding that he has followed it with success. I thus suggest a difference from the opinion of the learned Sheriff-substitute, but only on a point of form, and am fully in agreement with the substance of his opinion.

The negligence suggested by the imperfect closing of this particular carriage door must have been negligence on the part either (1) of servants of the defenders for whom they are responsible, or (2) of the passengers in the carriage during the journey, or (3) of these same passengers or other passengers or even strangers in the station. There is no suggestion in the evidence that any passenger other than those who travelled in the compartment, and still less any stranger in the station, was at any time, or was, in any event, after the last inspection, in the neighbourhood of, or in a position to meddle with, this offside carriage door. Failing any such positive evidence in the case of an offside door I am of opinion that the pursuer may claim that such negligence is excluded.

I agree with your Lordship in finding, and for my part have no difficulty in finding on your Lordship's analysis of the evidence, that the pursuer has, moreover, succeeded in excluding any interference with the door, whether intentional or inadvertent, on the part of any of the passengers in the compartment at any stage of the journey. In the vivid cameo pictures of what they saw, which are sketched by the four women who described the event, I, for my part also, find positive and not merely negative evidence which was amply sufficient to acquit the boy of any interference with the handle. I place little reliance on Mrs Speirs's remembrance ex intervallo of the position of the handle during the journey. This remembrance, as she explains later, and explains none the less albeit in the course of re-examination, is that of a passenger who had little experience of railway travel and little acquaintance with such mechanical devices. It is clear, moreover, from other passages in the evidence that certain of the witnesses were examined on the point while the handle itself (as forming part of the model) was being exhibited to them. If this was done in the case of Mrs Speirs, as it may quite properly have been done although not recorded in the notes, the clearness of expression of one view as followed by an opposite expression of equal clearness upon further consideration may, in the case of such a witness, not unreadily be explained. I do not think the pursuer attempted to dispute that, had the door been opened beyond the safety catch when the train left St Enoch's, it would have flown open within the first few yards of travel. His case, as I understood it, was that the door was not in that position, but was flush with the door-post and was apparently closed. The defenders have led no evidence beyond referring to the strength of the spring, which I do not find conclusive, to prove that the latch might not have been temporarily clogged and fixed back so as to allow the door to lie flush without its catch being engaged. They have not, in my opinion, excluded such a possibility by merely excluding the single particular explanation of "wrong centring" of the latch, as suggested by the pursuer's expert witness. Before they could discredit as "impossible" the direct evidence of the four witnesses for the pursuer, they necessarily underlay, in my opinion, the burden of excluding all practical possibilities including in any event both these alternatives. It is notorious, as even may be discovered by readers of the law reports, that, so far from such an event being impossible, closed railway carriage doors do in fact fly open.

On this view of the evidence the pursuer has thus succeeded, as a second instalment of exclusion under the method he has adopted, in dissociating the passengers in the compartment from the negligence which the unexplained opening of the door is relevant to infer. Having thus supported by evidence this second and principal exclusion, he has, in my opinion, transferred against the defenders the onus of acquitting themselves of the sole remaining negligence which—once negligence has been inferred from, although not conclusively established by, the opening of the door—he has already established prima facie as the explanation of the accident. That onus the defenders have, in my view, failed to discharge. They have, as already noted, failed to prove that the outside handle could not possibly have been in the upright position at St Enoch's and have been overlooked by the guard and collector who had the duty of inspection. While any such occasional failure of observation, if regarded with a proper indulgence, may readily be explained, it was conceded that even such a failure must none the less be regarded as negligence in a question with the pursuer; and for such incidental negligence, even in a case in which the system of inspection was accepted as having been adequate, it again was not disputed that the defenders were responsible.

So long as money is to be regarded as the solvent, and having in view the present price of money, I find myself quite unable to affirm as a proposition of law, for all that may have been said in earlier cases, that an award of £300 for solatium against wrongdoers, who are responsible for the death of a child 8 years old, ought in all cases to be regarded as requiring to be reviewed.

LORD CARMONT .—I found this a case of great difficulty. The learned Sheriff-substitute saw the witnesses and heard the evidence, and I agree with the views expressed by your Lordships that his determination should be affirmed.