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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Marshall v. Caledonian Railway Co. [1899] ScotLR 36_845 (5 July 1899) URL: http://www.bailii.org/scot/cases/ScotCS/1899/36SLR0845.html Cite as: [1899] ScotLR 36_845, [1899] SLR 36_845 |
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Page: 845↓
[Sheriff Court of Lanarkshire.
A railway company in the course of statutory operations made an opening in a wall surrounding a cellar, which they omitted to fill up again. In consequence of this a man in the employment of the company, who had observed that the opening had not been filled up, entered the cellar by it and stole goods belonging to the proprietor.
Held that as theft was one of the ordinary risks against which the company were bound to protect a proprietor when opening up his premises, they were liable in damages for the loss sustained through their failure to restore the premises to their original condition.
The Glasgow Central Railway Company were incorporated by the Act 51 and 52 Vict. c. 194, and were authorised, inter alia, to make a railway under Argyle Street, Glasgow. In terms of the Caledonian Railway Act 1889 (52 Vict. c. 12), sec. 50, the whole undertaking of the Glasgow Central Railway Company was vested in the Caledonian Railway Company. An action was raised in the Glasgow Sheriff Court against the last-named company by Mr Alexander Marshall, plane and saw maker, 277 Argyle Street, concluding for payment of £300 as damages, which the pursuer alleged he had sustained by the fault of the defenders. The premises occupied by the pursuer consisted of a shop on the street floor and a cellar under it. The cellar was lighted by a window opening into an area under the pavement surrounded by a kerb wall, and with an iron grating above it. The pursuer averred that in the course of executing the works authorised by the above-mentioned Act, the defenders in July 1893 had without notice to him removed part of the sub-soil round the area, and taken down the kerb wall, thus removing the protection afforded thereby to his premises, and had failed to make any adequate arrangements for the protection thereof during their operations; that they had allowed their workmen to enter the cellar, though the pursuer had remonstrated with their foremen. “(Cond. 5). The defenders afterwards pretended to rebuild the said wall, but culpably, recklessly, and unnecessarily left an opening therein which was sufficiently large to allow of a person getting from their underground railway into the pursuer's said cellar.”
The pursuer further averred that in consequence of the reckless and culpable manner in which the defenders had conducted their operations, and of their culpable failure to provide for the safety of his premises, a man named John M'Guire and others in the defenders' employment had entered the pursuer's cellar by means of the said opening, and had stolen goods to the value of the sum sued for.
The defenders averred that they had statutory powers to carry on the operations, and that they had been carried on with all due precautions, and that the pursuer's loss was due to his own negligence.
They pleaded, inter alia—“(9) In any event, the loss and damage condescended on not being the immediate or natural result of the defenders' operations, the defenders should be assoilzied.”
After sundry procedure the Sheriff-Substitute ( Strahan) allowed the parties a proof.
The Sheriff-Substitute on 11th July 1898 pronounced the following interlocutor:—“Finds that the pursuer is a hardware merchant carrying on business at 227 Argyle Street, Glasgow, and that his premises there consist of a shop on the street floor and a cellar under, which is lighted by a window fronting a small area underneath the pavement, and that this area has over it an iron grating and is surrounded by a kerb wall: Finds that in the course of the formation of the Central Railway the defenders required to underpin the said premises, and to enable that to be done they removed the pavement in front of the said premises, along with the said area wall and the surrounding subsoil: Finds that in rebuilding the said area wall an opening was left therein which was sufficient to admit of a person getting from the underground works of the defenders into the pursuer's premises: Finds that on various occasions between the months of May and October 1895 a man named John M'Guire, who was employed at the said works, entered the pursuer's premises through the said opening, and stole and carried away large quantities of goods belonging to the pursuer of the value of at least £300: Finds that the opening through which the said premises were entered as aforesaid was left in the said wall through the fault or negligence of the defenders or those for whom they are responsible, and that they are
Page: 846↓
liable to the pursuer for the value of the goods stolen from his premises as aforesaid: Therefore decerns against the defenders for payment to the pursuer of the said sum of £300,” &c. The defenders appealed to the First Division, and argued, inter alia, that the loss which the pursuer averred he had sustained was not the natural consequence of the defenders' actings, and that damage caused by the criminal acts of a third party was too remote to render the defeners liable.
The next question is somewhat curious, for the Railway Company say—“Suppose we did omit to do that, it is not a natural conclusion that a thief would have sufficient finesse to crawl through that hole to accomplish his purpose.” Now, I suppose experience shows it is wonderful what thieves can do in the way of making use of a small aperture to obtain access to coveted goods, and this seems to be an instance of it. The hole itself apparently physically admits of the possibility of this man or somebody else having gone through the wall, and that being to a certain extent matter of experience in a particular though not laudable profession, the Sheriff was informed by detectives, who are in the way of examining into things of this kind, and he has come to this conclusion that the thing was practicable and in fact happened. Well, now, it seems to be perfectly plain that if the Railway Company under statutory powers desires to open up a man's premises, they are bound to fill up the aperture completely, and that one of the ordinary risks against which walls are expected to stand as a safeguard is theft. As the Sheriff pointed out, the man who was superintending the construction of this work mentioned that he considered it part of his duty to guard against thieves. I am not prepared to say that if the company have the misfortune to have a thief amongst their workmen, it is not likely he will cast his eye 10 feet up and see this hole and make such use of it as was congenial to his propensities, and accordingly on the second point I am against the defender.
On the whole matter I should be loth to disturb the judgment of the Sheriff.
The Court dismissed the appeal and affirmed the interlocutor appealed against.
Counsel for the Pursuer—Sol.-Gen. Dickson, Q.C. Agents— J. W. & J. Mackenzie, W.S.
Counsel for the Defenders— J. B. Balfour, Q.C.— Nicolson. Agents— Hope, Todd, & Kirk, W.S.