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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Daly v. Arrol Brothers [1886] ScotLR 24_150 (25 June 1886) URL: http://www.bailii.org/scot/cases/ScotCS/1886/24SLR0150.html Cite as: [1886] SLR 24_150, [1886] ScotLR 24_150 |
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Page: 150↓
[Sheriff-Substitute of Lanarkshire.
A Workman was bitten in his master's yard when passing within reach of a dog chained there, and which was known by the master to have previously bitten more than one person. Held that, in the circumstances, the workman was acting incautiously in going near the dog, and that the injury was due to his own carelessness, and not to any want of precaution on the part of his master.
This was an action by Myles Daly, a boiler-maker, against Arrol Brothers, engineers, Glasgow, in whose employment he was at the date of the injury after mentioned.
The defenders had in their works a large watchdog, which was chained in a kennel in their yard by a chain about six feet long. This dog had, previously to 13th June, attacked and bitten two workmen in the works who came in without lawful reason when it was off the chain. Its kennel was in a part of the yard where it was not usual or necessary for workmen to pass. On 13th June 1885 the pursuer, during working hours, was passing the kennel within reach of the chain. The dog came out and bit him very severely, and this action was raised in consequence. The pursuer denied, but it was proved, that he had known before he was bitten of the dog being chained there.
The Sheriff-Substitute ( Spens) found, after findings to the effect above explained, that the pursuer was barred by his own contributory carelessness from recovering damages, in respect he went too close to the kennel, even if culpa had been proved against defenders, which, however, he held not proved. He therefore assoilzied them.
The pursuer appealed to the Court of Session, and argued that the dog having previously bitten, and the master being well aware of that, it was his duty either not to keep the dog, or to take not only reasonable but effective precautions against it doing injury.
Authorities cited—Stair, i. 9, 5; Sarch v. Blackburn, 4 Carrington & Payne, 297; Clark v. Armstrong, July 11, 1862, 24 D. 1315; Burton v. Moorhead, July 1, 1881, 8 R. 892; Addison on Torts, p. 115.
The Court pronounced this interlocutor:—
“Find that on the occasion mentioned in the record the defenders' dog was lodged in their works in a kennel, to which it was attached by a chain 6 feet in length: Find that the pursuer was aware of the presence of the dog there, but nevertheless approached it so near as to be within range of the chain, and was attacked and bitten: Find that the injury thus sustained by the pursuer is attributable to his own fault, and not to any fault on the part of the defenders: Therefore dismiss the appeal: Affirm the judgment of the Sheriff-Substitute appealed against: Of new, assoilzie the defenders from the conclusions of the action: Find them entitled to expenses in the Inferior Court and in this Court,”&c.
Counsel for Pursuer— Rhind—A. S. D. Thomson. Agent—
Counsel for Defenders— Jameson—Napier. Agents— J. & J. Ross, W.S.