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Scottish Jury Court Reports
You are here: BAILII >> Databases >> Scottish Jury Court Reports >> M'Laren v. Rae, &c. [1827] ScotJCR 4_Murray_381 (10 December 1827)
URL: http://www.bailii.org/scot/cases/ScotJCR/1827/4_Murray_381.html
Cite as: [1827] ScotJCR 4_Murray_381
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SCOTTISH_HoL_JURY_COURT
Page: 381↓
(1827) 4 Murray 381
CASES TRIED IN THE JURY COURT, AT EDINBURGH, AND ON THE CIRCUIT, FROM DECEMBER 1825 TO JULY 1828.
No. 46
v.
PRESENT, LORDS CHIEF COMMISSIONER AND
Damages against a master and servant, for injury caused by the negligence of the servant.
An action of damages against a master and servant for injury caused by the negligence of the servant.
Page: 382↓
Defence.—The master is not liable for the culpable negligence of the servant, and neither are liable for an accident.
“Whether, on or about the 11th day of September 1826, in the street called Gallowgate, in the city of Glasgow, a horse and cart, the property of the defender, John Rae, and under the management of the defender, Thomas Downes, then acting as his servant, did, through the fault, negligence, or want of skill of the said Thomas Downes, cause bodily harm to the pursuer, to the loss, injury, and damage of the pursuer?”
Cockburn opened the case, and stated the facts, and said, That the master was clearly liable,—that by the police act carts were not to be left in dangerous situations, and practice had explained, that, unless some one was at the head of the horse, it was to be held dangerous.
In an action for damage done by a cart, sufficient to give prima facie evidence of the property.
A witness having stated that there was no name on the cart, but that the carter said it belonged to Rae.
Lord Chief Commissioner.—This is not proof of the property of the cart, but is good
Page: 383↓
Linwood v. Hathorn, &c. 14th May 1817.
Rutherford, for Rae.—I admit the property, though it has not been proved by the best evidence. The facts proved are, that, while the servant is loading two carts, the horse of one bolts off, partly through the negligence of the pursuer, he therefore cannot get damages. The regulations of police requiring a person to be at the head of the horse are not carried home to the defender. The question here is, whether there was great negligence? In the case of Linwood and Hathorn strong doctrines were laid down; but the question is, whether the accident was likely to happen? Here there is merely a legal responsibility, and the facts raise a question of law.
Lord Chief Commissioner.—This case has been correctly conducted on both sides, and the evidence has been properly circumscribed. You are to consider the situation of these parties, and that the point to be made out is negligence, not malevolence; and in considering the case of the servant, you will not be disposed to give against him what might distress him.
The words of the issue clear away the observation
Page: 384↓
The fault must arise from want of skill or attention, and not from a wilful act. A criminal act will not subject the absent and innocent master. In this case want of skill may be laid aside, as not applicable to the circumstances.
The police act being public, all are bound to notice it, but it carries the matter very little farther than the common law; and the question is, whether a cart in the situation of this one was dangerous to the public, and whether one of the men ought not to have been at the head of the horses? The question here is on the common law, whether this person was in his common employment, and was negligent? Whether there was such diligence used as is requisite to free passengers from injury? and it is clear that the accident would not have happened if there had been any one at the head of the horses.
Page: 385↓
If you find for the pursuer, you will, on consideration of the facts, give what is reasonable; and damages ought never to be vindictive. The want of employment for three months at the rate stated would amount to about L. 18, and there is the expense of cure, and the permanent injury.
Verdict—For the pursuer. Damages against Rae, L. 75, and against Downes one shilling.
Counsel:
Cockburn, and A. M'Neil, for the Pursuer.
Rutherford, for the Defender.
Solicitors: (Agents, Ch. Fisher, Anderson and Whitchead.)