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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Craig v. Corporation of Glasgow [1919] UKHL 186 (16 January 1919)
URL: http://www.bailii.org/uk/cases/UKHL/1919/56SLR0186.html
Cite as: [1919] UKHL 186, 56 ScotLR 186
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SCOTTISH_SLR_House_of_Lords
Page: 186↓
House of Lords.
(Before
v.
Subject_Reparation — Negligence — Proof — Sufficiency of Evidence — Incuria Dans Locum Injuriæ.
Facts:
A farmer brought an action of damages against a corporation for personal injuries alleged to have been caused by the negligent driving of an electrically propelled tramcar belonging to them. He averred that while driving home two cows along a public road about five o'clock on a January afternoon he was run into by the car. It was proved that the car struck the foremost cow, that immediately thereafter and before the car stopped the driver felt a bump, and that the farmer was found lying unconscious on the ground to the rear of the car on the near side. The driver admitted that the car was travelling at the rate of about nine miles an hour, and it was proved that the night though cloudy was not dark, it being within two days of full moon. The farmer was unable to give any evidence as to how the accident happened, having lost his memory in consequence of the injury, and no further evidence was available. In an action of damages at his instance against the tramway company, held ( rev. judgment of the Second Division) that the evidence justified the inference that the pursuer's injuries were due to the fault of the defenders.
Metropolitan Railway Company v. Jackson,
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1877, 3 A.C. 193, and Wakelin v. London and North-Western Railway Company, 1886, 12 A.C. 41, distinguished.
Robert Craig, farmer, Giffnock, pursuer, brought an action in the Sheriff Court at Glasgow against the Corporation of the City of Glasgow, defenders, for £500 damages for personal injuries.
On 6th July 1916 the Sheriff-Substitute ( Lyell) allowed a proof. The defenders appealed to the Sheriff, and on 15th November 1916 the Sheriff ( Millar) adhered. The pursuer thereupon required the cause to be remitted to the Court of Session for trial by jury. The pursuer subsequently lodged an issue, and on 8th February 1917 the Second Division disallowed the proposed issue and of new before answer allowed parties a proof and remitted the cause to Lord Ormidale, Ordinary, to take the proof.
On 5th July 1917 the Lord Ordinary after proof found the defenders liable to the pursuer in £150 damages.
Opinion, from which the facts of the case appear:—“There is little direct evidence as to how the pursuer came to be struck by the car, for the pursuer was unable to describe his movements after passing the Rouken Glen east gate. He reached that point well before five o'clock, the light being good. After that his memory is a blank until he found himself, several days later, in bed at his farm of Eastwood Mains recovering from a severe concussion of the brain. The concussion was due to his being struck by the defenders' car No. 832. The evidence of the motorman makes that reasonably certain. According to the motorman Cameron, he was proceeding from the Eastwood Toll westwards at a speed of nine miles anyway, when he was confronted by a cow angling on to the rails, and seen by him for the first time when three yards off. He at once applied his magnetic brake, and brought his car to a stop in ten yards. Before he did so he had struck two objects—the first being the cow as it angled off the rails again, and the second, as it afterwards appeared, being the pursuer, whom he had never seen at all. Having brought his car to a stop, as he says, within ten yards, he got off the car and found the pursuer lying in the roadway to the rear of his car on the near side. With the aid of the conductress Alice Little he removed the pursuer, who was quite unconscious, to the wall by the side of the footpath which borders the road at the place of the accident. The exact locus is not in dispute. It was opposite Woodend House, close to a ‘stop if required car stopping-post. A car coming eastwards towards Eastwood Toll drew up. The pursuer was carried by the two motormen and placed in that car, which proceeded on its way as far as a chemist's shop, where the injured man received treatment, being afterwards carried to the Victoria Infirmary Three days later he was taken home.
The question to be answered is whether the defenders are to blame for the injury done to the pursuer. They say that the accident was in no way due to any fault of theirs, but entirely to the fault of the pursuer, and alternatively that even if they were in fault, the pursuer through his own fault materially contributed to the accident.
The fault attributed to the defenders—that is, to their servant the driver of the car—was driving at an excessive rate of speed, failing to keep a proper look-out, and failing to have his car under proper control.
The onus is on the pursuer to bring that fault, or these faults, home to the driver of the car.
The fault alleged against the pursuer is thus stated by the defenders on record—‘Explained that any accident sustained by pursuer was entirely caused, or at any rate materially contributed to, by his own fault in getting on or too near the rails upon which said tramway car was travelling at a time and in a manner which rendered an accident unavoidable. The pursuer's failure to take proper precautions for his own safety was the proximate cause of the accident averred by pursuer.’
It is for them to prove contributory negligence on the part of the pursuer.
The first two points to be considered are the amount of light there was, and the speed at which the car was being driven. …
[ After an examination of the evidence bearing on the amount of light his Lordship continued]—The weight of the evidence is entirely in favour of the pursuer's contention that these cows and man might have been seen a considerable distance ahead if the motorman had been keeping a good look-out.
[His Lordship then dealt with the evidence as to the speed of the car, from which he drew the conclusion that the car was going at considerably over ten miles an hour.]—Such being the state of the light, and such being the speed of the car, I draw the inference that Cameron's failure to see the pursuer and the cows was due to his not keeping a proper look-out. He says himself that if it had been a clear night he would have had no difficulty in seeing a man with two cows. He ought to have seen them, and if he did it was his duty to keep his car under such control as to avoid running into them or any of them. If necessary he should have stopped his car until they had passed him.
The pursuer has therefore in my judgment brought home fault to the defenders.
The question of whether the pursuer was guilty of contributory negligence is more difficult of solution. It was for the defenders to prove that he was so guilty. It is at once their misfortune and their fault that the pursuer is unable to state precisely what occurred just immediately prior to his being knocked over. That he had got to some extent in the way of the car is of course undoubted. If he had not he would not have been struck by it. But that fact is not of itself in my opinion sufficient evidence of contributory negligence. He must no doubt have seen the advancing car, for it was well lighted, but he was entitled to assume that he and his cows were also seen by the driver of the car, and that the latter would have his car so under control as to avoid running into him if he
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should for a moment have passed on to the car track in order to drive his cows off it. He was not taking an obvious and palpable risk. He was doing what he was reasonably entitled to assume, that the car-driver would be on the look-out for his doing, and would expect him to do, viz., to help to clear the car-rails. It is not necessary in my judgment to decide any general question of law as to the right of a man to imperil his safety in the endeavour to rescue property without his doing so being considered a fault. The defenders have not proved that, the pursuer was bound to know that he was incurring any risk at all. In my opinion if the driver of the car had kept a good look-out, as the pursuer was entitled to assume he was doing, the manœuvre which he himself was engaged in, so far as we know it, could have been executed free altogether from risk. The proximate and only cause of the accident was therefore the fault of the defenders through their servant Cameron. The damages I assess at £150.
The defenders reclaimed, and on 31st January 1918 the Second Division recalled the interlocutor of the Lord Ordinary and assoilzied the defenders from the conclusions of the action.
The most material set of averments was that contained in condescendence 4, and so far as they are concerned the proof turns out to be practically very nearly blank, because the unfortunate pursuer, when he recovered sufficiently to be examined as a witness, admitted that from a date five or ten minutes anterior to the accident until some weeks or months afterwards he could remember nothing, and therefore he was not able to give any account of how the accident happened. And while there were several witnesses examined for the pursuer, who spoke of the events on the road very shortly before the accident, none of them, so far as their evidence goes, actually saw what took place at the moment of, or immediately prior to, the accident. Accordingly we have no account of these events at all, and the pursuer was really in the end driven to rely mainly if not altogether for his case upon the evidence given by Cameron, the conductor of the tramway car in question.
The Lord Ordinary in his judgment has found that there was fault on the part of the defenders, that fault apparently consisting of the car having gone, while not at an extravagant rate of speed, faster than it ought to have gone, and the conductor not having kept a sufficient look-out. Having found that fault the Lord Ordinary apparently, so far as I can read his note, thought that finding was sufficient to justify a judgment for the pursuer unless the defenders had established contributory negligence. Proceeding to consider the latter question he arrives at the view that the defenders have not established contributory negligence.
It seems to me, however, that one cardinal blot on the Lord Ordinary's reasoning is that the mere finding of fault on the part of the defenders is not enough to justify a judgment for the pursuer, because fault must be brought into relation with the accident as a materially contributing cause which brought about the accident. Accordingly in the argument before us the case stated for the defenders was this, assuming that fault has been proved on the part of the defenders as the Lord Ordinary has found, they say there is a total want of evidence by which the fault could be so correlated with the accident that happened as to be held to be the inducing cause, or one of the main inducing causes, so as to result in liability on the part of the defenders.
I am inclined to think that that view as presented by the defenders is, on the authorities, right. The two main cases which seem to me to require to be considered in this respect are the cases of the Metropolitan Railway Company v. Jackson, 1877, 3 A.C. 193, and Wakelin v. London and North-Western Railway Company, 1886, 12 A.C. 41, to which we have been referred.
The case of Jackson had a somewhat checkered career, but ultimately after an equal division in the Court of Appeal, in which Lord Chief-Justice Cockburn and Mr Justice Amphlett were of opinion that the pursuers were entitled to retain their judgment, and Lord Chief-Baron Kelly and Lord Justice of Appeal Bramwell dissented, the case came before the House of Lords in 3 A.C., where the view taken by the dissenting Judges was affirmed and the judgment was that the plaintiff should be non-suited. In the course of his judgment Baron Bramwell says this—“Supposing the evidence to be consistent with negligence, i.e., that negligence may have caused the matters, it is equally consistent with no negligence, i.e., that the matters proved may have been caused otherwise than by negligence, and it is an elementary rule that where the evidence is consistent as much with one state of facts as with another it proves neither.” Then he goes on—“As to the other question. did these matters, or any of them, cause the accident, let us examine the train of causation.” He follows that through in some six propositions, and then he says—“Mr Justice Grove says it is not easy to lay down a rule in such a matter, but does any rule, any definition ever yet attempted, include such a case? Is what happened in any sense the natural consequence of its alleged cause? Was it causa proxima or remotissima?” And he
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In the House of Lords Lord Cairns says this—“In the present case I am bound to say that I do not find any evidence from which in my opinion negligence could reasonably be inferred. The negligence must in some way connect itself, or be connected by evidence, with the accident. It must be, if I might invent an expression founded upon a phrase in the civil law, in curia dans locum injurice. In the present case there was, no doubt, negligence in the company's servants”—it may have been in two respects which he refers to—“but there is nothing in my opinion in this negligence which connects itself with the accident that took place.” And Lord Blackburn in the same case says—“In all cases of actions to recover damages for a personal injury against railway companies the plaintiff has to prove first that there was on the part of the defenders a neglect of that duty cast upon them under the circumstances, and second that the damage he has sustained was the consequence of that neglect of duty.”
In the case of Wakelin the same view was emphasised, as I think still more pointedly, by the judgments given in the House of Lords. Lord Halsbury there began his judgment by saying—“It is incumbent upon the plaintiff in this case to establish by proof that her husband's death has been caused by some negligence of the defendants, some negligent act, or some negligent omission, to which the injury complained of in this case, the death of the husband, is attributable. That is the fact to be proved. If that fact is not proved the plaintiff fails, and if in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails, for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition ei qui affirmat non ei qui negat incumbat probatio. … If the simple proposition with which I started is accurate, it is manifest that the plaintiff, who gives evidence of a state of facts which is equally consistent with the wrong of which she complains having been caused by—in this sense that it could not have occurred without—her husband's own negligence as by the negligence of the defendants, it is not proved that it was caused by the defendants' negligence. She may, indeed, establish that the event has occurred through the joint negligence of both, but if that is the state of the evidence the plaintiff fails, because in pari delicto potior est conditio defendentis. It is true that the onus of proof may shift from time to time as matter of evidence, but still the question must ultimately arise whether the person who is bound to prove the affirmative of the issue, i.e., in this case the negligent act done, has discharged herself of that burden. I am of opinion that the plaintiff does not do this unless she proves that the defendants have caused the injury in the sense which I have explained. In this case I am unable to see any evidence of how this unfortunate calamity occurred. One may surmise, and it is but surmise and not evidence, that the unfortunate man was knocked down by a passing train while on the level-crossing; but assuming in the plaintiff's favour that fact to be established, is there anything to show that the train ran over the man rather than that the man ran against the train? If there are two moving bodies which come in contact, whether ships, or carriages, or even persons, it is not uncommon to hear the person complaining of the injury describe it as having been caused by his ship, or his carriage, or himself, having been run into, or run down, or run upon; but if a man ran across an approaching train so close that he was struck by it, is it more true to say that the engine ran down the man, or that the man ran against the engine? Neither man nor engine were intended to come in contact, but each advanced to such a point that contact was established.”
Lord Watson in the same case, says—“It does not, in my opinion, necessarily follow that the whole burden of proof is cast upon the plaintiff. That it lies with the plaintiff to prove the first of these propositions does not admit of dispute”—that is to say, that there was negligence on the part of the defenders. “Mere allegation or proof that the company were guilty of negligence is altogether irrelevant; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injury to somebody, but had no connection whatever with the injury for which redress is sought, and therefore the plaintiff must allege and prove, hot merely that they were negligent, but that their negligence caused or materially contributed to the injury.” And at the close of his judgment he says—In the present case I think the appellant must fail, because no attempt has been made to bring evidence in support of her allegations up to the point at which the question of contributory negligence becomes material. The evidence appears to me to show that the injuries which caused the death of Henry Wakelin were occasioned by contact with an engine or a train belonging to the respondents, and I am willing to assume, although I am by no means satisfied, that it has also been proved that they were in certain respects negligent. The evidence goes no further. It affords ample materials for conjecturing that the death may possibly have been occasioned by that negligence, but it furnishes no data from which an inference can be reasonably drawn that as a matter of fact it was so occasioned.”
I think these views are applicable to the present case and leave the case just where the Lord Ordinary found it, at its very best for the pursuer, namely, that assuming there was fault proved on the part of the defenders, it has not been proved that that fault contributed mainly or materially to the accident which happened. The result, therefore, in my judgment, is that the pursuer here has failed to prove his case, that the Lord Ordinary's judgment should be recalled, and that the defenders should be assoilzied.
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I need add nothing more, for I agree entirely in all that your Lordship has so fully explained.
Now realising, as I think, these elementary propositions, the pursuer here on record sets forth a most detailed account of how the accident happened. He was driving cows up this road in the direction of his farm. The cows were troublesome, and he had difficulty in keeping them from getting in front of the approaching tramway car. But when it was approaching the cows got in front of the car, and he rushed forward with a view of putting them off the lines upon which the car was going. Then he goes on to say that he depended upon the defenders' driver reducing the speed and enabling him to perform that operation safely by giving him more time.
Well now, all that turns out to be unsupported by any evidence whatever. The pursuer's recollection on the subject is an entire blank. There is no eye-witness that supports any of the averments that he makes. The only eye-witness who may be called such of the occurrence is the driver, and he says that he did not see the pursuer at all before the accident happened. He saw a cow cross a very short time before, and he put on the brakes and bumped against the cow. Shortly after that something else bumped against the car, which I can assume was the pursuer. But the fact that he did not see the pursuer is equally consistent with two circumstances—either that he was keeping a bad look-out, the pursuer being visible on the line or in front of the vehicle, or that the pursuer came from the side suddenly and came against the vehicle.
Now in that state of the facts, the theory of the pursuer being entirely unsupported by any evidence—unless the fact that the pursuer and his cows were going in an opposite direction to the car, which, as I think, does not advance his case at all—we are left to conjecture whether this accident happened in the way the pursuer suggested on record, or because the pursuer suddenly crossed in front of the car and came in contact with it. I do not think that the probability in favour of the pursuer's theory is any higher than the probability that he came in contact with the car because he was not paying attention to his own safety.
In that state of the evidence I am quite unable to affirm that the pursuer has discharged the onus that is undoubtedly upon him of showing that the accident occurred through the fault of the defenders—that is to say, showing not merely that they were to blame in some way which might conceivably be connected with the accident, or might indeed probably be connected with the accident, but that the accident in fact resulted from that negligence. And I must say that when we have here no account at all by any witness to the circumstances that preceded the accident, it is very difficult to infer a dependence such as the pursuer avers on record on somebody else doing his duty so as to excuse the pursuer for not getting out of the way of the car, it being a pure assumption that for any appreciable period of time he was on the rails in a position in which his person was endangered by the approaching car.
On these grounds I agree with your Lordship that the Lord Ordinary, assuming all that he says as regards the facts to be well founded, has failed to notice that there is no necessary or probable connection between these facts and the accident itself, and that therefore we have no materials upon which we can hold that the accident was occasioned by the fault of the defenders.
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But the pursuer's case is simplified by the defenders' admission before us that they were guilty of the two faults alleged by the pursuer, namely, excessive speed and want of look-out. The Lord Ordinary has gone on the footing, as I read his judgment, that in these circumstances only one question remains—the question of contributory negligence. If that were so, then the pursuer would be entitled to succeed, because the defenders do not say, and cannot Say, that they have proved contributory negligence on the part of the pursuer, in regard to whose conduct before the accident the evidence is a total blank.
But excluding contributory negligence and assuming fault on the defenders' part, the question still remains whether that fault had any direct connection with the accident. This is not a case where the defenders can say they have proved that their fault had no connection with the accident. It seems to me clear that if that were necessary for their success they must still fail. Both faults might well have caused the accident. The question, however, remains, has it been proved that one or both did so? Now that is for the pursuer to prove. I think the evidence comes very near it. He might have done so even by his own evidence as, for instance, if he had been able to say that before the accident he was driving the cows in the middle of the road, he being between the tramway lines, or if his witnesses who saw him and the cows before the accident had been able to depone to the effect I have just stated. But that question was not put to any of them. Nor does the doctor aid the pursuer by deponing that his injury was consistent with his theory of the accident.
But the pursuer in the absence of any direct evidence maintains his case upon inference, and I notice the Lord Ordinary goes so far as to say in the second last paragraph of his judgment that the pursuer must have seen the advancing car for it was well lighted. I cannot see that in the state of the evidence it is possible to come to any such conclusion. The pursuer cannot say that, in his view of the evidence, his view can be arrived at—a view of necessary inference. But he does say, and says with some force, that it can be reached with some reasonable inference. I concur with your Lordships in thinking that while the pursuer's theory may be correct in fact, and while his failure to succeed may well be due to the misfortune of the effect of the accident upon his memory, he has not proved that his theory is any more probable than the view of the accident put forward by the defenders, namely, that the pursuer's fault was in truth the proximate cause of the accident.
The pursuer appealed to the House of Lords.
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It is perfectly true that in this case there is no evidence given by any person who actually witnessed the accident; it is a case where it is necessary to rely upon admitted and proved facts in lack of the evidence of people who have seen the occurrence and can record their impressions. But this affords no difficulty in the present instance if in your Lordships' opinion the facts fairly permit of the inference that the man was knocked down by the car, and that the explanation of why he was knocked down was the fact that the driver, was not keeping a proper look-out. Such is the inference which the learned Lord Ordinary, who in this case exercises the functions of a jury, has found to be true, and the only question is, was it an inference legally permissible. The Lord Advocate's contention is that it is not, because according to his view the facts are absolutely equivocal and are equally consistent with a series of other hypothetical possibilities, anyone of which would have produced the result and need not have been associated with the negligence of the defendants. If this be correct the appeal must fail, for if a set of circumstances are equally consistent with a number of varying hypotheses no one can be selected as the one that is true.
I cannot, however, accept the contention that the facts bear this neutral aspect. With regard to the first point, namely, whether the car struck the man at all, it appears to me impossible to avoid the conclusion formed by the driver of the car himself at the moment of the accident that directly after the car had struck the cow it also struck and felled the man. The bump immediately followed the glancing of the car from the hind quarters of the cow. The driver finds the man unconscious immediately afterwards. The only thing that can possibly be suggested as an alternative to the car having struck the man is that the other cow had by some wholly inexplicable means been brought into violent collision with the car, and that the bump was due to an injury which has never been disclosed and which exists only in the realm of imagination. This argument does not command my assent.
If a man is known to have been walking in a direction opposite to that of a moving vehicle, if a bump is felt and the man is found injured immediately on the spot, the inference that his injury has been due to contact with the vehicle is something that I should have thought was irresistible. The Lord Advocate further says that even on that assumption the matter is not concluded against him unless it can be shown that the blow was received in such a manner that the absence of a careful look-out was the real explanation why it occurred. I do not think it necessary to inquire into the consideration of the question as to whether the man struck the car or the car struck the man. The matter that impresses me most upon this part of the case is the statement made by the driver when he said that if he had seen the man or the cows he would have been going slower, coupled with the evidence of witnesses who speak to having seen the man, not actually at the moment of the accident, but at a time which preceded it by only a few minutes, witnesses who say that they found no difficulty whatever in seeing the man and the cows, and I think in two cases witnesses even noticed the number that was found upon the cow's shoulder showing the lot mark under which it had been sold. Making all allowance for the dim and rapidly fading light this evidence certainly renders possible the inference that a careful reasonable look-out must have disclosed the presence of the man and the cows at such a distance, that having regard to the power of the brakes the accident would never have occurred.
These considerations take the case wholly outside the well-known authority. Wakelin v. London and North-Western Railway, 1886, 12 A.C. p. 41. In that case a man was found dead upon the railway by a level-crossing and there was no evidence to show how he had met with his death though it was accepted as due to collision with the train. There appears to have been no watchman at the gate, and the train had not whistled as it approached the crossing. It was decided by your Lordships' House that those circumstances left the accident unexplained, that there was no sufficient accepted fact from which an inference could fairly be deduced establishing that negligence on the part of the railway company had caused the accident. That is far away indeed from the present case, where the circumstances connect closely the negligence which has been accepted with the accident that has occurred. For the reasons I have placed before your Lordships I think that the learned Lord Ordinary was quite right in the view that he took, and for these reasons, in my opinion, the appeal should be allowed.
A great deal of attention was devoted in the judgments of the Second Division and in the argument at your Lordships' bar to two cases, the one decided in 1877, Jackson's case, and the other decided in 1886,
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The case of Wakelin is a case in which two propositions were laid down, the one by Lord Halsbury and the other by Lord Watson. Lord Halsbury points out what of course is as familiar as the proposition to which I have referred, as enunciated by Lord Cairns in Jackson's case that the incuria must be incuria dans locum injuriæ. Lord Halsbury in Wakelin laid down tl^it if all that the plaintiff proved was a state of facts equally consistent with the wrong of which she complained having been caused by her husband's own negligence as with its having been caused by the negligence of the defendants, she would not prove that it was caused by the defendants' negligence. Of that of course there can be no doubt whatever, and what the House was concerned with in Wakelin's case was the application of that undoubted proposition of law to the special facts of the case there.
The other proposition in Wakelin's case was laid down by Lord Watson, at page 47 of the report in 12 A.C., where he says—“I am of opinion that the onus of proving affirmatively that there was contributory negligence on the part of the person injured rests, in the first instance, upon the defendants, and that in the absence of evidence tending to that conclusion the plaintiff is not bound to prove the negative in order to entitle her to a verdict in her favour.” That proposition again is undoubted and has not been contested in argument in the present case.
Now, of course, unless the proper inference from the evidence here is that the negligence of the defendants caused the injury to the pursuer, the judgment of the Lord Ordinary in his favour could not stand. It has been contended by the Lord Advocate that that is the true result of a consideration of the case for two reasons. In the first place, he says that it is not proved in this case that the injury was the result of the car knocking the pursuer down at all; in the second place, he says that assuming that the car knocked the pursuer down the circumstances are equally consistent with its being the pursuer's own fault, so it comes within one of the propositions of law to which I have just been referring. It seems to me impossible to suppose that it was not the car which caused the injury to the pursuer. It is of course within the bounds of possibility that the pursuer had a fit and fell and injured his head upon the rail. It is within the bounds of possibility, as was suggested as a hypothesis—not I think that it was put as a very likely hypothesis—that he was knocked down by one of these cows. But what is the reasonable inference? That is what we have to deal with. Well, here we have got the finding of the Lord Ordinary in express terms—“The concussion was due to his being struck by the defenders' car, No. 832. The evidence of the motorman makes that reasonably certain.” That conclusion of fact is not questioned in any one of the judgments in the Inner House. The Lord Justice-Clerk discusses the question without saying anything to intimate that he would have quarrelled with that finding. Lord Dundas deals with the case on this footing in a slightly altered version of Lord Watson's language in the case of Wakelin—“The evidence appears to me to show that the injuries which caused the death of the pursuer were occasioned by contact with a tramway-car belonging to the defenders, and I am willing to assume, although I am not by any means satisfied, that it is also proved that they were in certain respects negligent. The evidence goes no further. It affords ample materials for conjecturing that the death may possibly have been occasioned by that negligence, but it furnishes no data from which an inference can be reasonably drawn that as a matter of fact it was so occasioned.” Lord Salvesen deals with the case really on the same basis, and so does Lord Guthrie. I believe it would be impossible to find any jury or any judge who would have the slightest doubt that in this case the injury was caused by contact with the car, and in face of the statement, proved to have been made by the driver at the time, that he had knocked the man down, and the report which he made after the accident to his employers in which under the head of “Nature of the accident” he said “Knocked man down,” the contention that there is any doubt about it appears to me to be absolutely extravagant.
But of course that is not enough. The question comes to be whether the circumstances show that the injury by the contact of the car with the pursuer was the result of the defendants' negligence, and it is said that even assuming that there was contact with the car, that was not shown to be the result of negligence of the defendants. It was argued that the evidence was quite consistent with the pursuer having himself run into the car, starting it was
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But circumstantial evidence may be just as valuable as direct evidence. It may vary very much in degree. I remember on one occasion Chief-Justice Cockburn, speaking of a case where there was no direct evidence of negligence, but where it was argued that the facts led to an inference of negligence, said this—“The facts in the present case speak, in a whisper it is true, but still audibly.” In the present case the facts to my mind do not speak in a whisper, they speak very distinctly indeed, and the only conclusion which I can draw under these circumstances is that the accident was directly caused by the car running into the pursuer owing to the absence of a proper look-out on the part of the driver of the car.
I am not going to compare the facts of Jackson's case or the facts of Wakelin's case with the facts of the present case; it seems to me that no inquiry is more idle than one which is devoted to seeing how nearly the facts of two cases come together. The use of cases is for the proposition of law. and it is no use to compare the special facts of one case with the special facts of another for the purpose of endeavouring to ascertain what conclusion you ought to arrive at in the second case. Authorities so used would really very much encumber the administration of justice. Applying the principles of law which are well established, and which were recognised in Jackson's case and in Wakelin's case, it appears to me that the true inference was drawn by the Lord Ordinary and that the Lord Ordinary's judgment ought to be restored.
I next ask myself was there negligence in so running him down? I say yes, because the driver's admission that he did not see the cow until he was within three yards of it, taken together with the facts spoken to by others as to the state of the light, is proof of negligence.
Great reliance was placed by the Lord Advocate on Wakelin's case, and in particular it was said that in Wakelin's case negligence was found and yet no liability. The reason was that the negligence there found or assumed was in no way shown to have been connected with the accident. But here the negligence is shown to be the cause of the accident, for without the negligence the car would not have run into the group.
There is all the difference between the case of a man run into on a railway and that of one run into on the road. In the latter case the man has an absolute right to be there, and it is the duty of the drivers of vehicles not to run him down. On a railway he has no right to be on the railway, and if he crosses it at a level crossing he has only a right to cross with such care as will ensure his own safety. There is no absolute duty on the driver of an engine to so drive his engine as to avoid hitting anything; there must, in order to make liability, be what I might call particular negligence leading to the accident. The negligence found in Wakelin's case was not of that sort.
I am clearly of opinion that Wakelin's case has no application to the facts of this case, that the Lord Ordinary was entitled to come to the conclusion he did, and that his judgment ought to be restored.
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Now into this group of three, a man and two cows, this driver runs—there is no doubt about that—and he strikes the leading member of the group a side blow. Instantly there is felt a bump. What caused the bump? There has not been a suggestion or particle of evidence to show what caused the bump. It immediately happened after the cow cleared. The man was found by the side of the car, and it is to be remembered that the driver admits that after the bump he forged ahead three yards, which would account perfectly well for the body of this unfortunate man being found near the extremity of the car. It would appear to me that the only rational conclusion that any human being can draw is that the man was struck by the tramcar at the same time or in a moment after the cow was struck, and that he was struck because the driver of the car did not keep a proper look-out for them and was coming at too high a speed.
A number of suggestions have been made to the effect that the pursuer may have been injured by walking up against this tramcar in the manner suggested in Wakelin's case. In order to establish any similarity between this case and Wakelin's case you must ignore the cow, you must ignore the bump, and if you find this man lying by the side of the tramcar and the tramcar there, then you would have an analogy between this case and Wakelin's; but as things stand the two facts I have mentioned—the fact that the cow was struck, and the fact that the bump was felt immediately and the body found after the bump was felt—absolutely distinguish this case from Wakelin's.
I have not the slightest doubt in my mind that the Lord Ordinary came to a right conclusion, and it was perfectly legitimate for him to come to that conclusion from the facts established in the evidence before him.
Their Lordships reversed the interlocutor appealed from, with costs.
Counsel for the Appellant— Sandeman. K.C.— A. M. Mackay. Agents— Manson & Turner Macfarlane, W.S., Edinburgh—Theodore Goddard & Company, London.
Counsel for the Respondents—Lord Advocate and Dean of Faculty ( Clyde, K.C.)— Gentles. Agents— Campbell & Smith, S. S. C., Edinburgh—Martin & Company, London.