Scottish Court of Session Decisions

The Lord President said that the case was one of some importance, and required an examination of the evidence in order to see whether the verdict was justified. But there were certain preliminary considerations occurring at the outset of the case. In the first place, the issue required, in order to justify a verdict for the pursuer, that the collision was imputable to the fault of the defenders. On the other hand, it was beyond question that the cause of the accident was the presence of a truck on the main line. That raised a presumption against the defenders, and, in the absence of farther evidence, would be conclusive on the question whether the accident was caused by the fault of the defenders. In the absence of explanation on that point, it would be reasonable to impute it to carelessness on the part of the defenders or their servants. Again, if the defenders undertook to prove that the truck was placed there maliciously, it might be that, in the absence of proof of negligence on their part, that might relieve them from responsibility. Whether it would be sufficient for them to prove that it was done maliciously by some person or persons unknown, was a question of difficulty. He was not prepared to say that in certain circumstances this might not be sufficient; but, if they did not connect some person with the malicious act, they must show it to be impossible that it could be done in any other way. That was just the position of the question here. The burden lay on the defenders to show that the waggon could not have run down from the siding except through the wilful and malicious act of some one, unaided by the servants of the defenders, or any for whom they were responsible. But that burden they had not discharged. The fair result of the evidence is that, while the waggon may have been brought through by some malicious person, it is possible that it may have come through by negligence on the part of the servants of the defenders, or of some one for whom they were responsible. Looking to the evidence, it would not be safe to hold that the waggon could only get out by malicious act. It was said, no doubt, that the siding was in such a condition of obstruction that it was impossible for the waggon to get out without overcoming three different obstacles. There was (1) a chock-block; (2) facing-points; and (3) another chock-block. But, then, on further examination of the evidence, it appeared that the first chock-block was not in good working order, but wanted the very thing indispensable to make it available. Then, as to the facing-points—supposing they were in proper order—most of the skilled witnesses seemed to be of opinion that if there was no one to look after them they ought to be locked. And common sense led to the same opinion, for everyone knew how likely facing-points were to get out of order, and what rough means were sometimes adopted by men working them to save themselves trouble. In the absence, therefore, of a superintendent and locks, it could not be held that these points gave a certain obstruction. Then nothing remained but the other chock-block, and it must be held on the evidence that that was not, any more than the first, in proper order. The Railway Company therefore had not shown that it was impossible for this waggon to get out of the siding on to the line. There was a fair question for the jury; and the jury had returned a verdict for the pursuer, which the Court were not entitled to disturb.

The other Judges concurred.