Scottish Court of Session Decisions

James Pollock, paper-mill worker, Glasgow, as tutor and administrator-in-law of his pupil son James Pollock junior, and for his own right and interest, raised an action against the Corporation of Glasgow, in which he concluded for payment of £500 as damages for injuries sustained by his said son.

The pursuer averred that his son was eleven years of age, and that the defenders were owners of the tramway car undertaking within the city of Glasgow. He further averred as follows—“(Cond. 2) On or about the 8th August 1900, and at about two o'clock afternoon, the said James Pollock junior was playing with some other boys in Dalmarnock Road at the tramway car terminus near Dalmarnock Bridge. At this time a car, No. 432, driven by Samuel Owens, 9 Queen Street, Partick, and in charge of James Bruce, of 264 Dumbarton Road, Partick, Glasgow, as conductor, was approaching the terminus from town. The car reached the terminus, the horses were changed, and everything was in readiness for the return journey. In order to get on to the line on which the return journey was to be made it

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was necessary that the points should be shifted, and it is averred that it has for years been the custom for the driver and conductor of the said car, and of the other drivers and conductors of the company on route No. 9, to employ boys not otherwise in the service of the Corporation to shift the points, and that this practice is well known to defenders, who have never forbidden ortaken any steps to prevent it. In point of fact they take benefit from it, as it enables the cars to be more rapidly despatched. (Cond. 3) On the occasion in question the said James Pollock junior, at the request of the said driver, who directed him where on the car to get the piece of iron which is carried on each car, and is used for the purpose of shifting the points, shifted the points with the iron near the terminus in question. While this was being done the car moved towards and passed the points, and as it was necessary, or at all events customary, for the boys to return to and mount the front platform of the car in order to replace the said iron implement, the said James Pollock junior went back and met the car, and jumped upon the front platform with the iron, which he was told by the driver to put down in its place behind where he stood. The driver, instead of stopping the car, as he ought to have done, to allow the boy to get off in safety, drove on at full speed. The boy finding, as was the fact, that the car was not to be stopped for him, proceeded to get off while it was in motion, with the result that in doing so he stumbled and fell, and the car went over his left leg and seriously injured it. (Cond. 5) The accident in question happened through the fault of the defenders, or those for whom they were responsible, through the driver and the conductor of the car conforming to the above-mentioned custom, which has been countenanced for a long time by defenders and their servants, and allowing a lad of the age of the said James Pollock junior to shift the points, and of the said driver permitting the said James Pollock junior to get off from the front platform while the car was in motion.

The pursuer pleaded—“(1) The pursuer's son, the said James Pollock junior, having been injured through the fault of the defenders, or those for whom they are responsible, the pursuer, as his tutor and administrator-in-law, is entitled to compensation as concluded for.”

The defender pleaded, inter alia—“(1) The pursuer's statements are irrelevant and insufficient to support the conclusions of the summons.”

On 26th February 1901 the Lord Ordinary ( Kincairney) approved of an issue proposed by the pursuer, and appointed it to be the issue for the trial of the cause.

The defenders reclaimed, and argued—The action was irrelevant. There was no averment on record that the boy made any request to the driver that the car should be stopped. There was no averment that the driver knew that the boy wanted to get off. It must therefore be assumed that the driver was never asked by the boy to stop, and had no other intimation that the boy wanted to get off. In such circumstances the driver was not entitled to think that the boy wanted to get off—his duty was to drive on. Further, the boy was not in the position of a passenger; he was a trespasser or a volunteer. If it were true that he came on the car at the invitation of the driver, the driver in giving that invitation had acted beyond the scope of his employment, and the defenders were not liable for the consequences of his action— M'Graw v. Edinburgh Street Tramways Company, January 10, 1891, 28 S.L.R. 256, per Lord Young at p. 257 and Lord Trayner at p. 258; Docherty v. Glasgow Tramways and Omnibus Company, Limited, Nov. 20, 1894, 32 S.L.R. 353.

Argued for the pursuer—The interlocutor reclaimed against should be affirmed. There was averred on record a practice known to the defenders and approved of by them. In the cases quoted the driver had exceeded his duty; in this case he had the implied authority of the defenders for his mode of procedure. It was the duty of the driver to see that the boy got off the car in safety after depositing the piece of iron. In place of that the driver, in the interests of the defenders and in order that their business might be quickly despatched, drove on at full speed. The boy seeing that the speed of the car was increasing could not be blamed for getting off. In such circumstances the defenders were responsible for the injury which the boy received. In any event the question turned very much on the facts of the case, and a trial should be allowed.