Scottish Court of Session Decisions

This was an action at the instance of the widow and children of Bernard Docherty, who was an inmate of St Joseph's Home, Glasgow, against Robert Watson, rag merchant, Glasgow, for damages for personal injuries to Docherty which caused his death.

The material facts of the case were as follows:—On 12th February 1883, at about half-past four o'clock in the afternoon, when it was daylight, the deceased, who was sixty-four years of age, was crossing Castle Street, when a van belonging to the defender, and driven by his son Robert Watson, a lad of sixteen, knocked him down and killed him. Robert Watson, who was the first witness for the pursuers, deponed—“I was driving down Castle Street. When I came near to the foot of Garngad Hill, there were about six vehicles on the street. There were two carts going down the road, three lengths of a cart away from me, and two coal carts going up the road. At that time I was going at the rate of between a trot and a walk. My van was a spring cart with sides. I never noticed Docherty until he came out from the back of a coal cart. He was then about six yards off from my horse's head. When I saw him I roared out ‘Hey.’ He did not appear to notice me. I roared about four or five times. He was going from the west to the east side of Castle Street. I was driving perhaps eight or nine feet from the east pavement of Castle Street. I was pulling up at the same time as I roared to the old man Docherty. He looked up about the third time I roared, and made a quick step forward, and the left-hand tram struck him and knocked him down.” Robert Hogg, nineteen years of age, deponed—“I was crossing the road at the old man's side, but nearer to the horse. I was passing from the west to the east side. Before I got into the track of the van I heard the vanman shouting. When I heard the shouting I stopped altogether, and put out my hand to try and catch the old man. Docherty heard the shout as well as me, for he lifted his head. The boy cried out a few times The van was not going at a great pace; it was going just at a trot. When I saw the van approaching I looked towards the van, and the old man and I both stopped to let the van past us, and the van pulled up, we thought he was going to stop the horse altogether. I jumped back, and the tram struck the old man.” Daniel M'Connal, twenty-eight years of age, a spirit salesman, saw the accident from a shop in Castle Street, and deponed—“I saw the old man making to cross the street. I saw him going across the street, and the van going down, and he made to cross the street, and he was barely opposite the horse's head when he took a notion that he would not have time to go across, and halted, and the van halted also. Then, after the old man halted, he seemed to think he would have time to pass and went on, and then the van went on. It was a misunderstanding between them which of them should move first.” Bernard Trayner, aged sixteen, who was about 6 or 7 yards from the van when he heard the shout, deponed—“I saw the old man leaving the pavement on which I was to cross the street. I noticed a van coming down. It came down on the east side. I heard the driver of the van shout. I heard it quite distinctly. He shouted two or three times. I think the old man heard the shout. I saw him lifting up his head, and he made to run forward to cross in front, and the shaft struck him. When I heard the boy shouting, the van was going at a slow trot.”

On 19th January 1883 the Sheriff — Substitute pronounced this interlocutor:—“Finds that on the 12th February last Bernard Docherty, the husband of the female pursuer Mrs Mary Docherty, and father of the other pursuers, came in contact with a horse drawing a van driven by the defender's son in Castle Street, and was knocked down, and received injuries, of which he died: Finds that the lad was driving carefully, and keeping a look-out, and called out several times to the old man, and that the mishap was not due to fault on his part: Therefore assoilzies the defender,” &c.

On appeal the Sheriff ( Clark) on 15th November 1883 pronounced this interlocutor:—“Finds that on the occasion libelled, the now deceased Bernard Docherty, while crossing Castle Street, Glasgow, met his death in consequence of being knocked down and run over by a horse and van belonging to the defender: Finds that on said occasion it was broad daylight, that the street was not crowded, but had very little traffic thereon, that the driver, the defender's son, a lad of sixteen years of age, was in a position to see all before him, and must have seen the deceased, when at a distance, amply sufficient to enable him to bring his vehicle to a stand, or at all events to have enabled him to pass without injury to the deceased: Finds that the said driver did not bring his horse and vehicle to a standstill, and did not take any proper means for keeping out of the way of the deceased: Therefore recals the interlocutor appealed against: Finds that the death of the deceased, took place in consequence of fault on the part of the defender, or of one for whom he is responsible, and that he is in consequence liable in damages to the pursuers: Assesses these at the sum of £100 sterling.

“ Note.—…. Upon the whole I have come to be of opinion, that keeping in view the case of Clark v. Petrie, June 1879, 6 R. 1076, and the views therein expressed by the Judges, fault has been clearly made out on the part of the driver of the van; and the only question that

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remains is the amount of damages to be awarded. I have assessed these damages at £100, taking into account the whole circumstances of the case, which seem to me to point entirely to solatium, for injury to feelings. If it had been made out that the deceased was the support of his family, or even contributing by his exertions in any appreciable degree to their support, the damages would have been considerably greater.”

The defender appealed to the Court of Session, and argued—This was merely a case of misunderstanding. The accident happened in broad daylight, the van was being driven at a slow pace, and the driver called out so as to give the deceased warning. In Clark v. Petrie, June 19, 1879, 6 R. 1076, the shouts were not sufficient to attract the attention of the person run over. In Grant v. The Glasgow Dairy Company, Dec. 1, 1881, 9 R. 182, the driver was not in his proper place; Ramsay v. Thomson & Son, Nov. 17, 1881, 9 R. 140; Auld v. M'Bey, Feb. 17, 1881, 8 R. 495.

The pursuers replied—It was observed in Clark v. Petrie that there is a strong presumption of negligence against a driver who runs down a person in daylight. The street where the accident took place was not crowded, and the driver must have seen all before him. There was therefore a plain duty on him not merely to slacken his pace but to pull up.

At advising—