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to some of the appellants' property. I cannot, and do not, found on these alleged facts because neither party desired proof, and proof was not led. I mention them only as shewing that such facts as "no benefit" are in dispute, as well as, in my opinion, not being sufficient to warrant exclusion.

A series of cases was quoted to me which establish the following proposition and this brings me to the appellants' other objection, viz. that they have been included in the scheme unfairly, and for the purpose of acquiring assessable subjects. The proposition is that a proposed district ought not to be stretched to cover a railway line or station in order to make them liable for rating. This was the ground of decision in some unreported cases the Glenfarg case, the Liddesdale case, the Cupar case. These were cases in which the railway lay at the boundary of the proposed district, and the question was whether the boundary should be drawn inside or outside the railway. The learned Sheriffs decided that it should be drawn inside. The present case is quite different. The railway company take no objections to the proposed boundaries, which, so far from being capricious, or suggesting an artful device to net in the railway; simply follow the boundaries of the special lighting district.

The boundaries extend far on the south, as well as on the north, side of the railway line, and it is not said that these boundaries ought to be modified so as to exclude the railway and everything to the one side of it. What the appellants claim in their pleadings is that the district ought to be cut in two by excluding the station and whole railway line, though at the hearing the appellants' agent stated that as an alternative, and one with which he would be satisfied, he claimed that a 66 corridor should be run in on the west and the east side of the proposed district, cutting out the railway line on either side up to about the station, but leaving the station in the special district.

The artificiality of this arrangement is clear. The only case quoted in support of such procedure was the unreported case of the North Cadder Water District, decided in 1902 by Sheriff Berry, reversing the Sheriff-Substitute. The case is a very special one, and seems to have been decided mainly on certain equitable considerations having reference to previous negotiations between the North British Railway Co. (who were appellants) and the District Committee of the County Council. It seems, from the long history of events given in the learned Sheriff's note, that the District Committee had been engaged in negotiating with the railway company for supplying water to


of the

their station, and that these negotiations London
proceeded on the footing that the railway and North-
company were at liberty to obtain inclusion Railway v.
in the water district to be formed, or not, as Western
they liked. The railway company accordingly District
decided in the negative, and entered into an Committee
agreement with the burgh of Kirkintilloch for County
a supply of water. The District Committee Council
thereafter included them in the rateable dis- of East
trict; but the Sheriff excluded them by Lothian.
making a sharp angle enclave on one side of
the boundary line, cutting out the railway
station. As I have said, the case was decided
on very special circumstances, and is not in
line with any principle in the other cases;
but, in any event, I think it marks the absolute
limit of exclusion. The claim of the appellants
in the present case goes even beyond it, for
even in their alternative claim they ask for a
corridor excluding their line to be run in, not
on one but on both sides of what otherwise
is a natural boundary line. I think that the
dictum of Sheriff Wilson, quoted above, applies
to the present case, and that the appellants are
not entitled to be excluded. I do not propose
to make any finding on expenses in the appeal.

Geo. Rattray, Solicitor: Agent for Respondents
Agent for Appellants (Railway Company),
(Western District Committee), Geo. Cruickshank,
Solicitor, County Clerk.



(Sheriff A. O. M. Mackenzie, K.C., and Sheriff-Substitute Blair.)

26th May 1924.

M'Colgan v. Richmond Park

Reparation-Negligence-Street-Running down-Motor car overtaking tramcar on offside-Duty of driver of motor car- -Contributory negligence—A pedestrian who was crossing a street passed in front of a tramcar which was sufficiently far away to enable him to do so safely. Immediately after passing in front of the tramcar the pedestrian was run down by a motor car which was overtaking the tramcar on its offside at a distance of about 1 yard from the tramcar-Held (1) that the driver of the motor car was bound in the circumstances to take special precautions; that he was in fault in not sounding his horn, in passing too near the tramcar, and at an excessive speed; and (2) that the pedestrian was not bound to foresee that a motor car was overtaking the tramcar on its offside, and therefore that he was not guilty of contributory negligence.

Patrick M'Colgan, miner, Cambuslang, raised an action of damages against the Richmond Park Laundry Ltd., Rutherglen, for payment of the sum of £250 in respect of injuries sustained.

from the point where the accident occurred on the offside of tramcar No. 815, with the object of overtaking it on that side; (12) that the pursuer on leaving the pavement did not see or could not have seen the defenders' motor van on the offside of the tramcar, inasmuch as it, the defenders' motor van, was blanketed by the tramcar No. 815 coming in the same direction; (13) that the speed of the motor van overtaking the tramcar No. 815 was 15 to 20 miles per hour; (14) that the driver of the defenders' motor van knew that tramcar No. 815 was due to pull up at the stopping-place, and in order to avoid passengers embarking or disembarking at that point deliberately chose the offside of the tramcar instead of waiting behind the tramcar and passing it on the inside in the customary way, when the passengers had cleared; (15) that, as it was, the defenders' driver passed the tramcar on the offside at a distance of about 1 yard from the offside of the tramcar, thus giving insufficient space for the pursuer, even if he had seen the motor van, to stand in safety between the two sets of tram rails; (16) that the defenders' driver was in

M'Colgan The following findings in fact are taken from the interlocutor of the Sheriff-Substitute : Richmond 66 Park (1) That on 21st July 1923, about 2.30 P.M., Laundry. in broad daylight, Patrick M'Colgan, fifty-nine, a miner, the pursuer in this action, left the close of the house of James Caldow, mining contractor, at 63 Main Street, Cambuslang, which close is situated on the north side of Main Street and is about 25 yards or thereby distant from the west side of Colebrook Street, also on the north side of Main Street; (2) that there is about 13 yards or thereby from said close, in the direction of Colebrook Street and on the same side as the close No. 63, a tramcar stopping-place at which all tramcars from the Glasgow direction stop; (3) that the pursuer when he emerged from the close proceeded in a diagonal direction to the edge of the pavement, and when there looked to his right hand in the direction of Glasgow for approaching traffic coming from that direction; (4) that he saw, some 20 yards distant away, a tramcar, No. 815, approaching from that direction, which tramcar he knew would require to stop at the stopping-place aforesaid; (5) that as regards this tramcar approaching from Glasgow direc-fault in passing so near the tramcar on the offtion the pursuer was safe, and had plenty of side; (17) that he also was in fault in proceedtime to cross in front of it in safety; (6) that ing at too great a speed; (18) that he also was before he left the pavement on the north side, in fault in not keeping a proper lookout at the and a few yards to the west of the said stopping-place where, and in the circumstances, the place, he also looked in the opposite direction for traffic coming from Cambuslang direction, and there saw another tramcar, at the moment stationary, but about to proceed towards Glasgow, 50 yards or thereby from where he was on the edge of the pavement; (7) that, as regards this stationary tramcar, at or near the cross-over points shewn on the plan No. 8, the pursuer had plenty of time to cross over in front of it in safety; (8) that having taken these precautions the pursuer proceeded to cross over to the other side of the street in a diagonal direction, south-east, starting from the pavement of the north side of Main Street, about 3 or 4 yards on the Glasgow side of the tramcar stopping-place; (9) that when he had crossed the north tramcar rails in safety and without danger and when he was in the space between the north and south set of tram rails he was knocked down by the defenders' motor van, driven by their servant Stephen D. Smart, thirty, and flung back on to the north tram rails in front of tramcar No. 815, which pulled up and so avoided another accident; (10) that the accident happened when the defenders' motor van, coming up on the offside of the tramcar and so overtaking it, had reached the front end, or a little beyond the front end, of tramcar No. 815; (11) that the defenders' motor van had come from the direction of The Sheriff-Substitute (Blair).-This is one Church Street cross-roads, 50 yards or so away of those cases which one is constantly figuring

accident happened; (19) that he was also in fault in not sounding his horn, or at least not until the motor van was about a yard off the pursuer, when he had no chance to get out of the way, or time to look for coming danger; (20) that there was no other vehicle traffic on the roadway except the two tramcars already mentioned; (21) that the pursuer was not in fault, and did not by his alleged negligence contribute to the accident."

The pursuer pleaded, inter alia:

"1. The pursuer having been injured through the fault of the defenders, or of those for whom they are responsible, as above condescended on, is entitled to reparation."

The defenders pleaded, inter alia:

"1. The pursuer not having been injured through the fault of the defenders, or of anyone for whom they are responsible, the defenders should be assoilzied.

"2. The accident condescended on having been caused, or at least materially contributed to, by the fault and negligence of the pursuer, the defenders should be assoilzied."

On 7th March 1924 the Sheriff-Substitute found the pursuer entitled to damages, and decerned against the defenders for payment of £75.

as happening in the streets of Glasgow almost daily. What are the rights of a pedestrian who has satisfied himself that, as regards approaching traffic in both directions, he is safe to cross, and what are the obligations and duties of a motor-car driver who, instead of conforming to the well-known bye-law for the safety of the public and passing on the inside of a tramcar, elects to pass and overtake it on the outside, with resultant injury to the pedestrian who was otherwise quite safe?

The main facts in this case are not seriously disputed, at least as to what the pursuer did. The trouble begins when he has got safely in front of the tram No. 815 on his voyage across the street. He was also safe from the other tramcar at the cross-over points about to proceed in the direction of Glasgow. It is argued by the defence that a motor car is quite entitled to overtake a tramcar on the offside, and is not bound to wait at a stopping-place till it clears and then pass on the inside; and to this it is answered, even if he does so he does so at his own risk.

The question, therefore, I have to decide is, to put it succinctly: Does a motor vehicle, overtaking a tramcar on the offside, do so at its own risk ?

I do not think I am obliged to decide that in categorical terms, and I express no opinion on the bye-law further than to say that its object is to secure, as far as possible, some measure of safety for the foot-passenger on the roadway. But at the same time it is clear from the ordinary rule of the road that a more special degree of care and judgment is required from any overtaking vehicle than is required from a driver proceeding in his proper direction and on his proper side unimpeded. There is, first of all, the presumption against a vehicle running down a foot-passenger in broad daylight, qualified it may be by a gross piece of contributory negligence on the part of the footpassenger (Auld v. M'Bey, 8 R. 495; Anderson v. Blackwood, 13 R. 443; M'Kechnie v. Couper, 14 R. 345).

ance space between his own vehicle and the M‘Colgan vehicle overtaken. In overtaking he must be v careful to watch out for corner traffic from Park a side street on his right hand.

In these respects, except in the case of sidestreet corner traffic which does not occur here, I think the defenders failed. There always is a controversy in motor-car cases as to whether the horn was sounded or not. In this case I have found that it was not sounded, relying on the evidence of the pursuer himself, Kirk, the driver of the tramcar, and Sweenie, M'Chlery, and Collins, who saw the whole affair. As against this, there is the evidence of the driver of the motor van, Smart, and Miss Goldie who accompanied him. They say the horn was sounded all the way from Church Street Cross, but there seems to me to have been no great necessity for this as the road was clear so far away. When horns are sounded continuously in this way it suggests that the motor is in a hurry, and that people must clear. Even if Smart did sound his horn, I think it must be inferred from Miss Goldie's evidence that he did so only at the last moment-when pursuer was only a yard in front, she says-and when there was no possible chance for him to get out of the way. The van was on him before he knew, before, indeed, he had time to look round. Although the van pulled up very quickly, I have come to the conclusion that its speed, just instantaneously prior to the accident, was 15 to 20 miles per hour; in my opinion too fast for the place and the circumstances.

But all this does not, I think, necessarily absolve the defenders if the pursuer by his own negligence contributed to the accident. So far as I know the nearest authority to this case is Imrie v. John A. Grant & Co., decided by the Second Division on 10th November 1923, and not reported, but a copy of the judges' opinions has been lodged and form No. 11 of process. There it was a motion for a new trial to upset the verdict of a jury awarding a pursuer-in somewhat similar circumstances-damages. The motion was fused on the ground that the jury had sufficient evidence to come to the conclusion that the pursuer had not been guilty of contributory negligence in not looking round again once he had passed the approaching tramcar in safety. That being so, and contributory negligence being a question of fact, the Court refused to interfere.


There is, I think, also a special duty on an overtaking vehicle to see that it can overtake the other vehicle with comparative safety, having in view the approaching traffic and the rights of pedestrians. It is clear and not, I think, disputable that if an accident happened by the process of cutting in between, the vehicle which did so would be liable in damages. There is further an obvious duty to give warning of Lord Anderson says: "Now I am quite its approach, another to have the vehicle in satisfied on this point, that a pedestrian crosssuch control as to be able to pull up and avoiding a public street is bound to take precautions an accident; in other words, to drive at a safe and controllable speed when attempting a manoeuvre fraught with exceptional risks. He ought at the same time to give sufficient clear

to avoid ordinary contingencies, or usual contingencies, but is not bound to take precautions against extraordinary or unusual happenings. Now the situation was so unusual as this




M'Colgan Mr Duffes, counsel for the defenders, suggests v. that this boy, who had safely got past the Richmond obvious danger a tramway car going westLaundry. wards ought to have foreseen that a big motor van was coming on the north or wrong side of the road, and making an effort to pass the moving tramcar. My Lords, I am satisfied that there was no duty upon the pedestrian to take such precaution. He was entitled to assume that if he got past the moving tramcar on to the north side of the street that that side was safe from traffic coming from the east towards the west. Accordingly, it seems to me that it is not proved that the boy was guilty of contributory negligence, and that the jury was right in so holding.'

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Lord Blackburn says: "My Lords, I agree. I charged the jury-and I think it is right in law-to the effect that the driver of the lorry was not necessarily at fault because he passed a tramway car going in the same direction as himself on the wrong side, but I told them that if he took that course he was bound to take extra and special precautions, because the fact that he was passing a tramway car on the wrong side might be a surprise to anyone crossing the street."

I have been supplied with a copy of their Lordships' opinions in that case, and they are in the process, as they are not reported else


It seems to me, therefore, that I am justified in holding that there was no contributory negligence on pursuer's part, and that he is entitled to compensation.

The injury was a dislocated shoulder, some bruising, and considerable shaking-not shock in the medical sense. He was confined to bed and to the house for, say, twelve weeks. I do not pay much importance to the fact that he had just been offered a job at £3, 10s. or £3, 12s. a week. He was, at the time of the accident, drawing compensation for some injury to his finger, and in addition was getting parish relief. Whether after the accident he continued to draw this or not I do not know. I presume not. I think it is fair to assume for the purposes of this case that he was, as in ordinary times he would have been, in full employment, say, at £3 a week. This makes £36 for loss of work, and say a further sum as solatium of £39 brings it to £75, in my opinion reasonable compensation for his injury.

I admit this case is not free from difficulty; and whether my judgment is right or wrong I hope it will go to the Court of Session, so that Sheriff-Substitutes may have some authoritative guidance in the question which is frequently before them, viz. the obligations of a foot-passenger in the above circumstances, and

the corresponding obligations for the safety of the public of a rapid vehicle overtaking a moving tramway car on the wrong side. Inter alia, reference was made at the debate to the rule of the road in overtaking tramway cars as contained in Ramsay v. Thomson & Sons (1881, 9 R. 140); Jardine v. Stonefield Laundry Co. (1887, 14 R. 839).

The defenders appealed to the Sheriff, who on 26th May 1924 adhered to the interlocutor of the Sheriff-Substitute.

The Sheriff (A. O. M. Mackenzie, K.C.).—It was argued in this appeal that no fault was proved against the driver of the defender's van. The Sheriff-Substitute has come to a contrary conclusion, and I am not prepared to differ from him. Where tramway lines are placed in the middle of a street, as they usually are, and were in this case, the side on which it is proper for an overtaking vehicle to pass a tramway car is the near side, and although a driver cannot, I think, be held in fault merely because he elects to pass a tramway car on the offside, it is his duty if he does so, as Lord Blackburn said in the case of Imrie, referred to by the Sheriff-Substitute, "to take extra and special precautions, because the fact that he was passing a tramway car on the wrong side might be a surprise to anyone crossing the street." The question, it seems to me, in this case is

whether the driver of the defenders' van took the extra and special precautions incumbent upon him in the circumstances. Among these precautions are (1) that he should keep a specially vigilant outlook in front of the tramway car which he is passing, in order that at the first possible moment he may see any side; (2) that in passing the tramway car he pedestrian who may be crossing from that should keep a reasonable distance from it, so as to have as long a view as possible of any such pedestrian; (3) that he should not pass the tramway car at an unnecessarily high speed; and (4) that he should sound his horn when the offside of the tramway car. passing and before he emerges from behind The question whether in this case the defenders' driver failed to take these precautions or any of them is, it Substitute, who was in the position of a jury, seems to me, a jury question, and the Sheriff

has found that the defenders' driver failed, to

take any of the precautions mentioned. In my opinion there was evidence on which he might reasonably come to that conclusion, and, as I have said, I am not prepared to differ from


Agent for Pursuer, John M'Callum, Writer, Glasgow; Agent for Defenders, David Dundas, Solicitor, Glasgow.

( 125 )



Note.-The figures refer to the number of the Page, and not to the number of the Case.

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MacIver v. Struthers, 15.

M'Laughlin v. T. Dixon Ltd., 57.
Macleod's Sequestration, 47.

Brown, Portpatrick and Wigtownshire Railway Joint- M'Phillip, M'Gale v., 112.

Committee v., 53.

Brown v. Smith, 88.

Browne, Morgan v., 12.

Cameron v. Cuthbertson, 67.

Campbell v. United Steamship Co., 55.

Commercial Bank of Scotland v. Bolton, 2.
Crampton v. Lithgows Ltd., 96.

Crawford & Elliot v. Wainstein, 18.

Crombie, Glass v., 8.

Cuthbertson, Cameron v., 67.

Dixon, T., Ltd., M'Laughlin v., 57.

Montgomerie v. Wilson, 48.
Morgan v. Browne, 12.
Munro v. Henderson, 87.

Neville v. Neville, 43.

Nicoll v. Perth Corporation, 50.

Perth Corporation, Nicoll v., 50.

Portpatrick and Wigtownshire Railway Joint-Committee

v. Brown, 53.

Purves v. Graham, 20.

Dixon, T., Ltd., Stevenson v., 45.

Docherty, Johnston Line Ltd. v., 65.

Queree v. Smith, 76.

R., Hurwitz v., 92.

East Lothian, Western District Committee of the County Richmond Park Laundry, M'Colgan v., 121.

Council of, L. & N.E. Railway v., 119.

Elliott, Langdon v., 9.

Gilbert v. Hannah, 86.

Glass v. Crombie, 6.

Gorman, Bell v., 74.

Graham, Purves v., 20.

Hannah, Gilbert v., 86.

Henderson, Munro v., 87.

Houston, Young v., 26.

Hurwitz v. R., 92.

Hurwitz, Robertson v., 94.

Johnston Line Ltd. v. Docherty, 65.

Kennedy v. Benson, 102.

Kingston Investment Co. Ltd., M'Clymont v., 118.

Robertson v. Hurwitz, 94.

Ross, Lithgows Ltd. v., 96.

Ross and Others v. Alexander, 69.

Samson, J. & R. Tennent Ltd. v., 44.

Scougal, Brockie v., 28.

Smith, Brown v., 88.

Smith-Objector, 101.

Smith, Queree v., 76.

Spencer, M'Dwaine v., 68.

Stevenson v. T. Dixon Ltd., 45.

Struthers, MacIver v., 15.

Taylor v. Bell, 70.

Tennent, J. & R., Ltd. v. Samson, 44.

United Steamship Co., Campbell v., 55.

Wainstein, Crawford & Elliot v., 18.

L. & N.E. Railway v. Western District Committee of the Ward v. Lawson & Mitchell, 11.
County Council of East Lothian, 119.

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