Scottish Court of Session Decisions

This was an action of damages brought by Jane Docherty, a girl of 13, with consent of her father, against the Glasgow Tramway and Omnibus Company, Limited, concluding for payment of £500 as damages.

The pursuer averred—“(Cond. 2) On the evening of Saturday, 31st March 1894, the pursuer was in Paisley Road, Glasgow, in company with her sister and another girl friend named M'Leod, about her own age. When they were near Clutha Street, one of the defenders’ cars came up, going from Ibrox to Paisley Road Toll. The driver of the said car was named Edward Sweeney, and Sweeney, who, it appears, was an acquaintance of the girl M'Leod, invited the three girls to come on to the said car, and asked them to come to the front part of the car, where he himself was. The pursuer

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and the other two girls accordingly stepped on to the car, and stood at the front part of it beside the driver, for a considerable time, until the car reached Sussex Street. The pursuer, during the whole of this time, was not found fault with by any of the defenders' servants for standing where she did, nor was she asked or ordered to go to any other part of the car, and she did not know that she was doing anything wrong in going on to the car when asked by the driver, and standing where she did. The pursuer was a passenger on the said car, and the defenders were entitled to demand a fare from her, as a member of the public travelling on their car. (Cond. 3) When the car was in Sussex Street, and while the car was running at its usual speed, the said driver suddenly ordered the pursuer to get down off the car immediately. He, however, did not stop or slow the ear to enable her to get off, and the pursuer or one of the other girls requested the driver once or twice to do so. He, however, refused to do this, and still continued to drive on at the ordinary speed, while at the same time he again insisted that the pursuer must get off the car at once and without delay. The pursuer was suddenly placed in a position of much difficulty and danger owing to the driver's said conduct. She had reason to fear, from the driver's conduct, that, if she did not obey his orders and attempt to get off the car at once, while it was still running, he would push her off, and, on the other hand, she was too inexperienced to appreciate fully the danger involved in attempting to get off the car while in motion. Accordingly, upon the driver still insisting that she must , get off the car, while he refused to stop or slacken speed, the pursuer was compelled to attempt to obey the driver's order, and to get off, with the result that in alighting she fell backward, and one of her feet was caught under the wheel of the car, which passed over it… . (Cond. 4) The said accident occurred through the fault and negligence of the said driver in the defenders' employment, for whom defenders are responsible. He was well aware of the great danger involved in the pursuer getting off the front of the car while it was in motion. In this knowledge he ordered the pursuer to get off, and insisted on her getting off at once, while he at the same time refused to stop or slacken speed in order that she might alight with safety, with the result that she met with said accident.”

The defenders produced a copy of their bye-laws, from which it appeared that it was against the rules of the company for the driver to allow persons to travel on a car without paying as passengers, or to travel on the front part of the car beside him. They pleaded—“(1) The pursuer's statements are irrelevant and insufficient to support the conclusions of the action.”

On 20th November the Lord Ordinary ( Wellwood) sustained the defenders' first plea and dismissed the action.

“ Note.—In the course of discussion it was assumed, and I think properly assumed, that the pursuer when riding on the tramway car was a tresspasser. She was in no proper sense a passenger. She had no intention of paying, and it is not even said that she mounted the car for the purpose of being carried to any particular place. She was invited to do so along with two other girls by the driver of the car. In so inviting the girls to come on to the front part of the car beside him the driver disobeyed orders in two respects. He allowed the girls to travel on the car without paying as passengers, and he allowed them to come on to a part of the car from which, according to express rule, they should have been excluded.

“The pursuer's statement is that after the car had travelled for a considerable time the driver suddenly ordered her to get down off the car immediately. That she asked him to stop the car and that he refused to do so and again ordered her to get off the car. That she had reason to fear from his conduct that he would push her off, and accordingly jumped off the car, and the result was she fell backward and her foot was caught by one of the wheels and she was very badly injured.

“This is a lamentable result of a comparatively innocent frolic, but when a claim of damages is made, not against the driver of the car but against his employers, it must be closely scrutinised. Even as against the driver the averments of fault are remarkably thin; it is not said that he used any violence, and it is not said that he used any threats.

“But assuming that there was fault upon his part, and that what he did amounted to unnecessary violence, the defenders, his employers, cannot be made liable unless in a reasonable sense he was acting within the scope of his duty as their servant.

“The mere fact that the pursuer was a trespasser does not preclude her from recovering damages. If a servant when acting bona fide in his master's interests removes a trespasser with unnecessary violence, the master will be liable for the injuries so caused although he certainly did not authorise the use of violence by his servant. The whole question is whether the driver of the car was acting within the scope of his duty or not in causing the pursuer to leave the car while it was in motion. Now, the driver was admittedly not acting within the scope of his duty when he invited the pursuer to come on to the car, and he must have known that he was acting against rules. Nothwithstanding this it is argued that when he made her get off the car he was acting within the scope of his duty, and in obedience to orders and in the interest of his employers. I cannot accept this view. I cannot separate the hurried removal of the pursuer from the car from her improper admission to it. In removing her the driver acted in no sense in the proper discharge of his duty to his employers, but in order to conceal the irregularity of which he had been guilty. Suppose a private coachman in the absence of his master allows a friend

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to enter the carriage, and by careless driving upsets the carriage and his friend is injured, the master is not liable, because the servant was not acting within the scope of his duty in driving his, the. coachman's, friend in the carriage. Again, if a servant, say a publican's assistant, who has instructions to turn everyone out of the house at the hour of closing, asks a personal friend to remain after that hour as his guest, and hearing the police coming tries to induce the friend to leave and failing to do so uses violence and causes personal injury, it it seems to me that it would be the height of impudence for the injured guest to bring an action of damages against the employer. In no proper sense could it be said that the assistant, in allowing the guest to remain or in ejecting him from the house for the purpose of screening himself, was acting within the scope of his duty.

“In all the cases in which an employer has been held liable for the violence of his servant, the servant has been acting, although in an unduly violent manner, in the interests of his employers. I was referred in particular to the case of Carter, 49 American Rep. 780, and to a case of M'Graw, 28 S.L.R. 256. In neither of these cases does it appear either that the trespasser was expressly invited to come on the car or engine by the servant, although the servant may have become aware of his presence, or that in forcing him off the servant had any other purpose than to obey his master's orders. In M'Graw's case I may say that the question of relevancy was never determined at all. The Lord Ordinary allowed a proof before answer, and it was the pursuer, not the defender, who reclaimed, the pursuer wishing a trial by jury. It is plain from the opinions of the Lord Ordinary and those of the Judges of the Inner House that they entertained great doubts of the relevancy of the action.”