JUDGES OF THE COURT OF SESSION DURING THE PERIOD OF THE REPORTS IN THIS VOLUME. FIRST DIVISION. LORD PRESIDENT-THE RIGHT HON. LORD STRATHCLYDE. SECOND DIVISION. LORD JUSTICE-CLERK-THE RIGHT HON. LORD SCOTT DICKSON. THE HON. LORD DUNDAS, THE HON. LORD SALVESEN, AND THE HON. LORD GUTHRIE. LORDS ORDINARY. THE HON. LORD CULLEN (W. J. CULLEN). *THE HON. LORD DEWAR (ARTHUR DEWAR). THE HON. LORD ORMIDALE (GEORGE L. MACFARLANE). THE HON. LORD HUNTER (WILLIAM HUNTER). THE HON. LORD ANDERSON (ANDREW MACBETH ANDERSON). The Hon. LORD DEWAR died on 14th June 1917. REPORTS 1917, 1 SCOTS LAW TIMES REPORTED BY J. W. FORBES, Esq., M.A., LL.B.; J. W. MORE, Esq., B.A., M.A.; R. HENDRY, Esq., M.A.; D. OSWALD DYKES, Esq., M.A., LL.B.; A. N. SKELTON, Esq., B.A.; MARCUS DODS, Esq., B.A.; GEORGE HART, ESQ., M.A., LL.B.; W. A. FLEMING, Esq., M.A., LL.B.; AND ALEXANDER BROWN, Esq., M.A., LL.B., ADVOCATES. NOTE.-Cases in this volume may be cited 1917, I S.L.T. REPORTS COND. 3. On or about 15th August 1915 the pursuer travelled as a passenger in one of the defenders' tramway cars from Battlefield Road, Langside, Glasgow, to the stopping station in Clarkston Road, Cathcart, the signpost of which station was then situated at or near to the kerb-stones of the pavement on the east side of Clarkston Road and about nine yards to the north or north-east of the gate to [a] cemetery, at or near to which station the pursuer alighted after the car had stopped. The said signpost has since been removed slightly from the position in which it was then placed. The defenders have the control of appointing and fixing the places at which the said tramcars stop. It was their duty to select places safe for passengers to alight and to cross the roadway to the pavement. COND. 4. Just as pursuer alighted from the car and had assisted a child to alight she made to go towards the east pavement when her left foot slipped into a hollow in the roadway, with the result that her foot and ankle were suddenly and violently bent to the side. She fell to the ground and collapsed with pain. COND. 5. On said 15th August 1915, and for at least nine months prior thereto, the said roadway opposite the said stopping station, and for twenty feet south thereof and ten feet north thereof, all between the water channel of the east pavement and the causeway setts forming a margin to the south-going or eastmost tramway lines, was in a dangerous and defective condition in consequence of the surface being broken and uneven. In particular, that part of the said roadway on to which the pursuer stepped when she sprained her ankle, and the roadway for several yards on each side thereof, were at the time of the said accident in a very defective and dangerous condition to foot passengers, and particularly to passengers alighting or coming from a tramcar at the said stopping station. A few yards to the south-west of the said stoppingplace the roadway was causewayed for a short distance, but beyond the causeway and at and around the stopping-place the surface had at one time been macadamised. At and for many months prior to the date of the accident the macadam surface had, from lack of repair, become broken up into numerous hollows of various depths. About opposite the said signpost there was an iron grating surrounded by a number of granite setts about two inches above the average level of the said broken roadway. tramway rails were also bordered by a line of setts which, in the then state of the roadway, were about two inches above the average level of the said broken macadam. The setts surrounding the said grating adjoin on one side the said setts bordering the tramway rails. At or near the junction of the tramway setts with the grating setts, and in the surface of the macadam, is the said hollow into which the pursuer's foot slipped. The tramway car, in accordance with the said stopping-place, stopped just where the pursuer on alighting would step or slip into the said hollow immediately on leaving the car. Accordingly on alighting as aforesaid she slipped from the relatively higher level of the setts near the said junction of the tramway setts and the grating setts, into the said hollow and sustained the said injuries. The COND. 7. The accident was due to the fault of the defenders. It was their duty to have the said roadway in a safe condition for the pursuer in alighting from the car and crossing to the pavement. They failed in this duty. They knew or ought to have known of the said dangerous condition of the roadway at the points referred to, and it was their duty to have the same made safe to the pursuer and the public. Further, there was a duty on the defenders to select as a stopping-place a safe part of the roadway. They failed in this duty, and were at fault in selecting as a stopping-place for the cars a place where the roadway and the setts therein were in such relative position and condition as to make a slip or fall, when or immediately after alighting from the car, a probable occurrence. The accident was due to the defenders' said failure in duty. The pursuer had the right to REPORTS-1917, 1 SCOTS LAW TIMES. be where she was on the said roadway. The roadway where the accident took place has since been repaired, and causewayed and made uniformly level. The defenders averred: ANS. 7. Admitted that it is the duty of the defenders to have the roadway in a reasonably safe condition, and that the pursuer had the right to be where she was. Quoad ultra denied. The defenders pleaded, inter alia: "1. The action is irrelevant." On 26th January 1916 the Sheriff-Substitute (Fyfe) sustained the first plea in law for the defenders and dismissed the action. The Pursuer appealed and argued: A relevant case had been stated. It was averred that the accident was caused through the fault of the defenders, by reason of the defective condition of the roadway. It was averred that the defenders had culpably allowed the surface of the roadway to remain broken up and in a state of disrepair, which made the surface dangerous to persons using it, as they were invited by the defenders to do. The defenders themselves fixed the stopping-place of the car and were under a special duty to the pursuer and to other members of the public to see that the roadway was safe and not dangerous to passengers alighting from their tramway cars. It was the duty of the defenders to maintain the stopping-place in a proper and efficient state of repair, and they had negligently failed to do so. Argued for the Defenders: The only duty upon the defenders was to have the road in a safe condition for road traffic. The averment of the pursuer only amounted to a statement that there were undulations in the surface of a roadway. These must necessarily exist on all roads, and there was nothing on record which distinguished the particular hollow from any other hollow or undulation in the roadway. It was impossible to prevent such hollows with the heavy motor traffic now upon the roads. There was no averment of a drop of two inches at any particular place; all that was said was that there was a hollow, and hollows would be present in any roadway on which undulations existed. There were mere general averments that the roadway was in a dangerous and defective condition, but these were not relevant until they were made more specific. On 16th December 1916 the Court pronounced the following interlocutor: "Sustain the appeal; recal the interlocutor of the Sheriff Substitute appealed against, and remit the cause to him to allow proof and proceed as accords." The Lord Justice-Clerk.—I think the SheriffSubstitute has gone a little too fast here. While the averments perhaps might have been more specific in some respects, I think that they are sufficient to shew the particular character of the roadway which is complained of, and that it 3 would be unsafe to dispose of the case without 2ND DIV. Lord Salvesen.-I agree. The first ground fact that the defenders admit that it is their duty to have the roadway in a reasonably safe On the other point in the case I think the Lord Guthrie.-I agree. I do not think the Counsel for Pursuer, Morton, Dunbar; Agent, W. R. G., for W. A. F. poration of Glasgow. December 16, 1916. |