Scottish Court of Session Decisions

John Innes, engine-driver, Lumphinnans, Fife, brought an action in the Sheriff Court of Fife at Dunfermline against the Fife Coal Company, Limited, concluding for £250 as solatium for the death of his son.

The pursuer averred as follows:—“(Cond. 2) In connection with the defenders' works at Lumphinnans, there is a branch line of railway belonging to them running from their No. 1 pit at Lumphinnans to the Thornton and Dunfermline Railway belonging to the North British Railway Company. Close to said pithead there is a siding off said branch line of railway used by the defenders for shunting operations and for the storage of trucks of coal awaiting removal along said branch line of railway. (Cond. 3) Adjoining said siding or lye (which is slightly curved), and at right angles thereto, are two rows of miners' houses, occupied at a rent by the pursuer and other workmen in the employment of the defenders. Said houses are in close proximity to the said siding, the nearest being about 8 yards and the pursuer's house about 15 yards distant therefrom. Across said siding, which has been partially removed, the defenders lately erected several new houses for the occupation of their workmen, and they have allowed them to be occupied without providing any buffer end or other protection to same. Said siding is on a level with the adjoining ground, and is entirely unfenced. On the other side of said siding from said first-mentioned houses is a bleaching-green in connection with said houses, the only access to which is across said siding. The children in said houses are in the habit of playing on said bleaching-green, and on and near said siding, a fact which was known to the defenders and their managers. The whole ground occupied by the siding, houses, and bleaching-green belongs to the defenders. (Cond. 4) On Friday the 30th day of March 1900 the pursuer received instructions from the defenders to make up a train of 150 tons of what are known as double coals. There were at the time two lots of waggons of coal standing on said siding, namely, one lot of nine waggons standing near said new houses, consisting of seven trucks of what are known as single coals and two trucks of double coals, and another lot of eleven

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waggons of double coals. Between said two lots of waggons and opposite said first-mentioned houses was a space of about 14 feet. (Cond. 5) In accordance with his instructions, the pursuer proceeded to make up a race of waggons of said double coals, and in order to do so ran his locomotive and four waggons of double coal along said siding for the purpose of connecting the latter with said lot of eleven waggons, and thereafter with the two trucks of double coals attached to the other lot of waggons. No guard or shunter was provided to the said pursuer by the defenders. Owing to the curve in said siding it was impossible for the pursuer to see along the upper or south side of the same, his view being obstructed by said four waggons, but he kept a good look-out while the locomotive, pushing the four waggons in front, proceeded slowly and with caution down the siding. (Cond. 6) At the time when said shunting operations were being carried on, a number of children belonging to workmen in the employment of the defenders, among them James Innes, aged two years, son of the pursuer, were playing about between said first-mentioned houses and said siding, and opposite the open space before mentioned between the two lots of waggons, and on said siding itself. It was impossible, owing to the curve in said siding, and to his view being in consequence obstructed by the waggons in front of him, for the pursuer to see the children who were playing about. (Cond. 7) When the locomotive with said four waggons came against said lot of eleven waggons, the impact was so slight that it only sent the latter about 1 yard down the siding towards the children, and the said James Innes, son of the pursuer, was caught between the upper rail of said siding and the front wheel of the foremost waggon. He was in consequence so severely squeezed and injured on the legs and abdomen, although the front wheeel of the foremost waggon had not gone over him, that he shortly afterwards died. (Cond. 8) Said accident was caused through the negligence of the defenders in respect that they did not provide a suitable and sufficient fence to said siding. They knew that children were accustomed to play on and in the immediate vicinity of said siding, and were exposed to risk of injury through defenders' shunting operations upon it. It was the duty of the defenders to fence said siding in order to prevent the children resident in the adjoining houses from obtaining access thereto, but they did not do so. If they had done so, the accident would not have happened. (Cond. 9) Further, in the absence of a sufficient fence, it was the defenders' duty to have appointed a guard or shunter to superintend or take charge of said shunting operations, and to make certain that the line was clear for the passage of waggons. The defenders did not fulfil their duty in this respect, hut neglected it, and so caused the accident.” The defenders pleaded inter alia—“(1) The action is irrelevant. (3) In any view, the pursuer having been guilty of contributory negligence, the defenders are entitled to absolvitor. (4) Separatim—The pursuer having engaged in an occupation and taken a residence which to his knowledge inferred danger to his child, was bound to have taken precautions to prevent the child reaching the siding.”

On 6th July 1900 the Sheriff-Substitute ( Gillespie) allowed a proof.

Note.—“This was a sad accident, for the driver of the train of waggons between which the child was crushed happened to he the father of the child. But whether any liability attaches to the defenders, even on the pursuer's own showing, is far from clear. It is a question belonging to a difficult category of law.

It must be regarded as settled that there is not in general any common law obligation on the owners of a railway to fence the railway so as to prevent children straying on it. Davidson v. Monklands Railway Company, July 5, 1855, 17 D. 1038; Houghton v. North British Railway Company, November 29, 1892, 20 R. 113, is not inconsistent when examined.

But the defenders having let a dwelling-house to the pursuer in immediate proximity to their siding, which, according to the pursuer's description, was a place of special danger, I am not prepared to say that, if the pursuer can prove his averments, there was no obligation on the part of the defenders to fence off the siding from the house, or, failing that, to take other precautions for the safety of their tenant's children, who, according to the pursuer's averments, would be very apt to get on to the siding. It is not necessarily conclusive against the pursuer's claim that he was as capable of appreciating the danger as the defenders, though this is doubtless an important element in the case. It is a defence which is best disposed of on a view of the actual facts.”

On appeal the Sheriff ( Chisholm) adhered.

The pursuer appealed to the Court of Session for jury trial.

The respondents argued—(1) The pursuer's averments were irrelevant. (2) As the pursuer's own act had been the immediate cause of the accident, he could not claim damages for the consequences. The maxim volenti non fit injuria applied— Membery v. Great Western Railway Company, May 14, 1889, 14 A. C. 179, per Lord Bram well.

Counsel for the respondent were not called upon.