Scottish Court of Session Decisions

John Auld, labourer, sued William M'Bey, omnibus proprietor, and George Drummond, a driver in his employment, in the Sheriff Court of Aberdeen, for damages in respect of the death of Thomas Auld, his son, a child about six years old, who was alleged to have been killed through the culpable negligence of the defender Drummond.

The circumstances of the accident which caused the child's death were as follows:—Two omnibuses were in use to leave Aberdeen daily for Newburgh at the same hour in the morning, the one belonging to the defender M'Bey, the other to a man named Tough. On the 26th of September 1880, after halting together at an inn on the road, Tough's omnibus started first, a number of children running after it, some hanging on the step behind; M'Bey's omnibus, driven by the other defender Drummond, followed close behind. When they had proceeded about sixty yards along the road the child Auld fell down—whether from the step of the front omnibus or having stumbled on a stone did not clearly appear—and in spite of every effort to pull up the horses, the omnibus driven by Drummond passed over him and killed him on the spot. At the time of the accident the heads of Drummond's horses were not more than six yards or so behind the omnibus in front; it was not proved that he was driving at an excessive speed; some evidence was led as to the omnibusses racing and Drummond trying to pass Tough's omnibus at the time of the accident, but this allegation was not fully established.

The Sheriff-Substitute ( Dove Wilson), after proof led, found that the defender had failed to prove that the injury complained of was caused through the negligence of the defender's servant, and therefore assoilzied the defender.

On appeal the Sheriff ( Guthrie Smith) recalled that interlocutor, found it proved that the child was killed through the fault of the defenders, and assessed the damages at £60.

He added this note:—… “Upon these facts the Sheriff is of opinion that there was contributory negligence on the part of the boy. Allowance must of course be made for children who are necessarily left to run about the streets of a village giving way to their natural instincts; but in hanging on to the 'bus they were certainly engaged in a practice which ought not to be permitted, and if anything had happened to them without the intervention of a third party they would have had themselves to blame. The question is, Were the defenders to blame? and as regards their responsibility these are the rules as enunciated in the Court of last resort which fall to be applied:—

“1. The plaintiff in an action for negligence cannot succeed if it is found by the jury that he himself has been guilty of any negligence or want of ordinary care which contributed to cause the accident.

2. But there is another proposition equally well established, and it is a qualification on the first, namely, that though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, yet

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if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him.— Redlay v. L. and N.-W. Railway Co., Dec. 1, 1876, H. of L., L.R. 1 App. Ca. 754.”

The defenders appealed to the Court of Session.

Authorities— Redlay v. L. and N.-W. Railway Co., Dec. 1, 1876, L.R. 1 App. Ca. 754; Davis v. Maur, 1842, 10 M. and W. 546; Clark v. Petrie, June 19, 1879, 6 R. 1076; Grant v. Caledonian Railway Co., Dec. 10, 1870, 9 Macph. 258; King v. North British Railway Co., Oct, 29, 1874, 12 Scot. Law Rep. 53; Galloway v. King, June 11, 1872, 10 Macph. 788; Aberdeen Commercial Co. v. Jackson, Oct. 16, 1873, 1 R. 25; Campbell v. Ord and Maddison, Nov. 5, 1873, 1 R. 149.