Scottish Court of Session Decisions

This was an action raised by Mrs Elizabeth Gemmell or Anderson, Main Street, Barrhead, against the Glasgow and South-Western Railway Company. It concluded for the sum of £250 as damages for personal injuries which the pursuer averred she had sustained while travelling on the defenders' line, through the gross fault and negligence of the officials employed by them. The circumstances which gave rise to the action were the following:—

On the 26th of January 1880, the pursuer, who is fifty-two years of age, was returning home from Greenock to Barrhead, accompanied by her little girl, in a third class compartment on the defenders' line. The said compartment was near the front part of the train, and was occupied by two other passengers, Charlotte and Jeanie Smith. At Shields Road Station a third passenger, Thomas Conchar, entered the compartment. In her condescendence the pursuer stated that on arrival at Main Street Station, Glasgow, where she and her daughter had to change carriages for Barrhead, Conchar opened the door to allow the other passengers in the compartment to get out. The two Smiths alighted, but as the pursuer was in the act of doing so the train started off suddenly without any warning being given, and before due and reasonable time had been given for the passengers to alight. Glendinning, the guard of the train, approached her, and catching hold of her helped her to alight, but in the attempt they both fell, the guard on the platform, and she between the platform and the train, the result being that she received the injuries which gave rise to this action. She averred that the accident occurred through the gross and culpable negligence of the railway officials. The train, which was advertised to reach Main Street Station at 8:10 and depart at 8:11, was behind its time, and insufficient time was given to allow the passengers to alight. The door of the compartment in which she was was not closed when the train started. She pleaded that “The defenders having contracted to carry the female pursuer from Greenock to Glasgow, and she having received the injuries condescended on through the fault and negligence of the defenders, or of those acting under them, or for whom they are responsible, decree should pass as concluded for in name of damages and solatium.”

The defenders, on the other hand, averred that a reasonable time had, as was customary, been given for passengers to alight. The train had not started suddenly. The pursuer had endangered herself by attempting to alight after that period had elapsed and after the train had resumed its onward journey and before it could be again brought to a standstill to enable her to alight. The guard had approached her when she was making the attempt and warned her of her danger, and it was only because she disregarded his warning that the accident had occurred. They pleaded that “(1) The female pursuer not having received the alleged injuries through the fault of the defenders, or of those acting under them, or for whom they are responsible, they were entitled to decree of absolvitor, with expenses. (2) The injuries alleged to have been sustained by the female pursuer having been caused by her own fault, the defenders are entitled to decree of absolvitor, with expenses. (3) Even assuming the defenders were guilty of fault in the circumstances, yet the female pursuer having by her own fault materially contributed to cause said injuries, the defenders are entitled to decree of absolvitor, with expenses.”

The Sheriff-Substitute ( Lees) held a proof, the import of which appears in his interlocutor and note, as well as in the Sheriff-Principal's interlocutor and note and the opinions of the Judges. He found “(1) That on the evening of 26th January last the female pursuer was a passenger on the defender's line by the train leaving Greenock at ten minutes past seven in the evening, and arriving in Glasgow about an hour afterwards; (2) that on the arrival of the train at Main Street Station, Glasgow, the said pursuer and the other passengers in the compartment with her who were about to alight at that station, proceeded to leave the train; and (3) that she was by the mismanagement of the defenders' servants thrown on the platform, and thence fell between two of the carriages on to the ballast between the line and the platform, and was thereby much injured;” he therefore found the defenders liable in damages, which he assessed at the sum of £50.

“ Note.—… The train seems to have been punctual in its arrival, and the solitary porter who represented the defenders at the station says that he called the name of the station as the train passed him. The passengers who were with the pursuer say they did not hear the name of the station called, and as the train was probably coming in pretty rapidly I am not surprised that they failed to catch the name mentioned by him. The fact of whether they were made cognisant of their arrival at Main Street Station is only of importance as having a bearing on the delay which it is said took place on their part in alighting. The pursuer and the Smiths say they got out at once, and as the Smiths had some knowledge of Main Street Station, and as none of them had any luggage or even an umbrella to pick up, there is a good deal to be said in favour of the view that they proceeded to get out at once. On the other hand, Conchar contradicts these witnesses, and says they did not attempt to get out at once. The railway

Page: 628↓

servants say the same; and the fact that the train had begun to move before the last of the passengers had left the compartment in which the pursuer was, and that they on alighting did not see any of the other passengers who are said to have left the train, is, on the whole, perhaps better evidence to show that there had been some delay on the part of the pursuer and the Smiths in alighting.

I do not think it necessary, however, expressly to decide the point, because there are, as it appears to me, other materials adequate for the decision of the cause. What took place as matter of fact was, that Conchar, finding the pursuer and the Smiths desired to alight, opened the door of the carriage, and that they then proceeded to leave the train as quickly as possible. They say they got no warning the train was about to start; but I think in this they must be wrong, and that there are sufficient materials for believing that the usual signals were given that the train was about to start, although perhaps in the hurry of the moment the women did not observe them… . The pursuer had to make two steps of 15 inches each in perpendicular height in order to alight on the platform. Charlotte Smith got out of the train safely. Jeanie Smith also got out, and the guard came up just in time to aid her in making the last step. The pursuer's child came next, and was lifted by the guard from the carriage to the platform. There is some contradiction—and I am not surprised at it—as to when the train started. In my opinion, the bulk of the evidence points distinctly to the view that the train had begun to move before the little girl was put on the platform, and I think a strong corroboration of this view is to be found in the undisputed fact that by the time the pursuer, who came immediately after her child, got out of the carriage it had got some way from the place where the little girl had been taken out. It is shown that the guard beckoned the pursuer to stay in, and apparently called to her also, which would not have been necessary if the train had not been in motion. He says he had signalled for the train to stop, and looking to the fact that the signal consisted in moving the glasses of his lantern, this would readily account for the train having got some way on at the time when the pursuer was trying to leave the carriage. Glen-dinning, fearing the pursuer might receive injury, or perhaps thinking that she was not going to remain on the step of the carriage, grasped her, somewhat awkwardly I fear, but at anyrate with the result that, tripping on her dress as he says, they both fell on the platform, and she rolled in between two of the carriages and fell on the ballast, which most fortunately here extends some way under the lip of the platform. Now, as the pursuer was travelling in the middle compartment of the carriage, and fell between the carriages, this also shows that the train must have had some way on by this time, and also in my opinion supports the view that the train was in motion before the guard proceeded to lift the pursuer's child out of the carriage.

The guard seemed an active and intelligent young man, and I entertain no doubt whatever that what he did up to this period was intended for the best. But I think it was wrong, and that his error lay in not forbidding passengers to get out when he found them trying to leave a train which had begun to move. Indeed, it may be questioned whether his best course would not have been by grasping the railing outside the doorway of the compartment to have kept them in. Instead of that he lifted the child out, and thus by his actings invited the passengers to continue to alight.”

On appeal the Sheriff-Principal ( Clark) found “that on 26th January last the female pursuer was a passenger on the defender's line of railway by the train leaving Greenock at ten minutes past seven p. m., and arriving in Glasgow about an hour afterwards; that in the compartment occupied by the pursuer there were also her little girl, two young women named Smith, and a young man named Conchar; that on the arrival of the train at Main Street Station the usual stoppage took place to enable passengers to alight; that the defenders' officials then looked to see if all the doors were shut, and finding this to be so, gave the signal to start, both by whistle and lamp, in the usual way; that as the train was getting into motion, the guard noticed that the door of the carriage occupied by the pursuer was being opened, and ran forward to see what the reason was; that on getting to the spot he found one of the Miss Smiths on the platform, and the other Miss Smith in the act of coming out, with her foot on the footboard; that the guard, as it was then impossible at once to stop the train, did what he could to prevent mischief, and helped the second Miss Smith on to the platform; that the pursuer's little girl immediately followed, and the guard, though the train was then plainly in motion, succeeded in lifting her on to the platform in safety, and did his utmost by voice and gesture to induce the pursuer to remain in the train till he could get it stopped; that notwithstanding his efforts the pursuer came out, and that the guard then did his best to save her, but that in the effort so to do both the pursuer and he fell, and the consequence was that she received the injuries complained of—the guard himself being also injured; Found, in point of law, that the pursuer was herself the cause of the injuries she received, in respect she attempted to leave the carriage after the train was in motion; further, that the guard did all that could be expected of him in the circumstances; therefore recalled the judgment appealed against, and assoilzied the defenders from the conclusions of the action.”

He added this note—“It seems to me proved that when the train stopped at Main Street it remained the usual time for passengers to alight. It has been maintained that the interval was not long enough; but on a careful perusal of the evidence I am inclined to believe that this is unfounded. It would rather appear from the evidence of Conchar, a fellow-passenger with the pursuer, and from other circumstances, that she and the others did not at once prepare to alight when the train stopped, but only began to do this after more than the ordinary interval had elapsed. It is also, I think, duly proved that the train did not start till after the signal, not only by lamp but by whistle, had been duly given, and that the latter might have been heard by the pursuer if she had been giving reasonable attention. But be this as it may, it is plainly established that the pursuer attempted to alight, and was in course of doing so, when the train was already in motion,

Page: 629↓

and that motion was quite perceptible. Now, if this be so, it necessarily follows that she contravened an important rule established for her own safety, and was therefore the direct cause of what occurred.

“On turning now to what took place on the part of the company, it is difficult to see in what respect they can be said to have been in fault. Before the signal to start was given, the officials, following the ordinary rule, looked and saw that all the doors were shut, and were therefore entitled to assume that no other person was going to leave the train. The signal to start was given accordingly, and the engine was set in motion. The train, of course, at first moved slowly, but every moment necessarily accelerated the pace. It was at this juncture that the guard, looking back, observed the door of the pursuer's carriage opening and persons coming out. Knowing the danger they ran, he hurried to the spot, and by the time he got there one of the Miss Smiths was already on the platform and the other was on the footboard. He was placed in a very serious dilemma, but seems to have done his best in the circumstances. He helped the second lady to the ground, but in the meantime the pursuer's child had already emerged from the carriage close behind her, and was in a state of great danger. Her he also succeeded in getting down to the platform in safety. But her mother, the pursuer, was also immediately behind, and though he shouted and gesticulated to her, she paid no attention but continued her course. He then did the best he could, and in the effort to save her both she and he rolled on the platform, and both received injuries. It must be kept in mind that all this proceeded continuously and in the course of a few seconds, during which a person of the most steady mind might have considerable difficulty in judging what was best to be done. It is suggested that the guard should not only have called to the pursuer to stay in, but should have closed the door on her or pushed her back. I doubt if such a thing were possible—the attempt would certainly have been attended with extreme danger. It must be noticed that the passengers came out one after the other in a continuous stream. It seems to me that the guard, placed by the act of the pursuer and her fellow passengers in a position of great perplexity, did the best he could. It is said the pursuer, by the acts of the guard, was placed in such a position that to act or forbear to act was attended with equal danger. I think the very reverse was the actual state of the facts. It was the fault of the pursuer and her fellow-passengers that placed the guard in a position of great perplexity. The origo mali lay not with him, but with them in attempting to leave, the train, not only after the signal to start was given, but when it was already in motion… .

In the view I take of this case, it seems to me that the pursuer was solely to blame for what took place in attempting to leave the carriage while the train was in motion. It is important in the interests of the public and all those having occasion to travel by railway that the rule in reference to this should be strictly enforced.”

The pursuer appealed.

At advising—