Scottish Court of Session Decisions

Joseph M'Lean and others, the husband and children of Mrs Mary M'Lean, pursuers, brought an action against the Corporation of Glasgow, defenders, concluding for decree for payment of £250 to Joseph M'Lean and £100 to each of the children of Joseph M'Lean and Mrs M'Lean in name of damages for the death of Mrs M'Lean, who was knocked down by a tramway car driven by the defenders' servant and died from the injuries so received.

The defenders pleaded, inter alia—“3. The accident to the deceased Mary M'Kellar or M'Lean having been caused or materially contributed to by her own fault and negligence, the defenders are entitled to absolvitor.”

On 17th November 1917 the Lord Ordinary ( Ormidale), after a proof, assoilzied the defenders.

Opinion, from which the facts of the case appear—“This is an action at the instance of the husband and children of a Mrs M'Lean, who was knocked down by a tramway car belonging to the defenders on Saturday 30th December 1916, and so injured that she died half-an-hour afterwards.

The accident took place about 9 p.m. as Mrs M'Lean was crossing Argyle Street (in Glasgow) from the east corner of Perth Street on the north side to a dairy on the south side.

It was very dark at the time and place of the accident. The lighting restrictions were in force. The street lamps were lighted only on the north side of Argyle Street—the nearest lamp in front of the car being 70 yards distant—and the illumination from these was of a very subdued character. It was a ‘right dirty wet night.’

The offending car showed no light ahead except that proceeding from a lamp fixed on the middle of the dash about two feet from the ground. The lower half of that again was obscured.

The witnesses Phillips and Jackson were in every way satisfactory. Their evidence was given with moderation and intelligence, and I have no doubt that they gave a perfectly truthful account of what, to the best of their observation and recollection, happened to Mrs M'Lean.

According to these witnesses Mrs M'Lean left the north side of the street to cross over, when the car would be about twenty yards away to the west of her. She proceeded in a slanting direction, that is, with her back

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slightly turned towards the car. To clear the rails on which the car was running she had to traverse about 20 feet. She had just reached the second rail when the car struck her and knocked her down on to the four-foot way. The motorman sounded his bell and applied the brakes almost simultaneously just before the woman was struck, and the car came to rest about a car's length from where the woman was struck by it. Another car proceeding in the opposite direction on the other set of rails was warned by Duffy to stop, and drew up ‘nose to nose’ with the offending car.

Phillips said that the woman looked round as she left the pavement and would see the approaching car. Jackson saw her look round only once when she was either just on the first rail or between the rails. The car bell gave a double peal, and it was when the first peal was given that she looked round, the car being half its length from her. He thought that the woman was frightened or dazed, and seemed to hesitate. He thought that she was too far advanced to get either back or forward out of the way of the car. Duffy could not say whether the woman looked round at all, or how far off the car was when she reached the first rail.

The first question is whether the pursuers have proved fault on the part of the defenders. The faults alleged are excessive speed, failure to keep a proper lookout, and failure to give timeous warning.

The speed I take to have been between nine and ten miles an hour. The car was coasting on a down gradient, and had done so for about 100 yards. The motorman said that it would gather a little speed, but that he always kept it under control by means of the brake. He could not say when he had last applied the hand brake before the accident.

What is excessive speed must always depend on the circumstances of the moment, and it appears to me that one of the most cogent considerations is the distance ahead that the driver can see. On the occasion in question the night was very dark, and it was raining. The car was a vestibule car, and the glass by which the driver's platform was enclosed was so obscured by the rain that it was impossible to see through it. To counteract this the driver had let down the 18-inch wide window in front of him about 6 or 8 inches with the result that he could see right ahead. Everything to the side of that line of vision remained in obscurity. The dash light lit up the tramway in front for 3 to 5 yards. Beyond that the driver could see nothing. On the occasion in question he was not sounding his bell as he came along.

Now to drive ahead in a pitch black and very wet night with such a very restricted outlook at nine or ten miles an hour without notice of the car's approach except that given by the partially obscured dash-light was in my opinion to drive at an excessive speed. The rate of speed must have some relation to the length of effective outlook or view ahead, and also to the distance within which the car can be brought to a stop. A good stop going at eight miles an hour would be about a car's length or 30 feet, i.e., twice the distance that the driver could on the night in question see in front of him. It may be highly inconvenient to go at a rate slower than the speed usual and perfectly safe in daylight, or even at night when the streets are well lighted, but under the conditions proved to have been existent on the night in question it was the duty of the driver to proceed with the utmost care and circumspection, and in my judgment at a slower rate than the car was in fact travelling. His speed was in the circumstance excessive.

According to the driver he only saw Mrs M'Lean when she was 3 or 4 feet from the car and when she was on the second of the rails she had to cross. That in my opinion is not consistent with the driver having kept a proper lookout even under the prevailing conditions. If his attention had been directed to the tramway straight ahead of him—the only direction in which he could usefully look—he was bound to have seen the woman at a distance of 9 to 15 feet. It was for the driver to explain how he failed to notice her sooner, and he entirely failed to do so. It may be that he exaggerated the difficulties of seeing about and in front of him, and according to the account given by Philips and Jackson he must have first seen Mrs M'Lean at a greater distance than 3 or 4 feet, but whether that be so or not the evidence to my mind establishes that he failed to keep a proper lookout.

As regards the alleged want of warning, pursuers' counsel did not press this point, and the driver appears to have sounded his bell as soon as he had notice of Mrs M'Lean's presence on the rails.

I am prepared to hold that the pursuer has proved negligence or fault on the part of the defenders.

But the further question has to be answered—have the defenders proved that Mrs M'Lean was herself guilty of contributory negligence? Before attempting to cross the street it was Mrs M'Lean's duty to look to see whether she would be in safety to do so. Philips says that she did so look, and would see the car coming. Jackson did not see her look round until she was on the rails and the car bell sounded. Assuming that she did look up the street before leaving the pavement she would see the car about 20 yards off. Was she justified in attempting to cross in front of it without paying further heed to the car? In my opinion she was not. Before entering upon the actual danger zone, i.e., the tramway rails, it was her duty again to look. It seems to me that it is what nine people out of ten would do, and they would do it just because it is a reasonable precaution in their own interest to take. The dicta of the Lord Justice-Clerk in M'Allister v. Corporation of Glasgow, 1917 S.C. 430, 54 S.L.R. 401, are in point—‘If people proceed to cross tramway lines when they know or ought to know that there is an approaching car in very close proximity, and put that car outwith their range of vision without looking previously to see how far off it is

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before they enter the danger zone, they have themselves to blame if they get hurt.’ The judgment in Watson v. Corporation of Glasgow, 1917, 54 S.L.R. 593, is to the same effect. Here Mrs M'Lean was crossing the street diagonally—slanting across. She had nearly 20 feet to go to clear the first set of rails. The car had about three times that distance to go, but it was travelling three times as quickly as Mrs M'Lean. Obviously it was a very near thing, and on the assumption that she knew of the car's approach Mrs M'Lean was not entitled, without watching the car closely, to take the risk. As Mrs M'Lean is dead it is impossible to say with certainty what was in her mind, or whether she saw the car at all. My own impression is that Jackson is probably right, and that Mrs M'Lean did not know of the car's approach until she heard the bell and looked up, when it was too late. But if she did not look to see before leaving the pavement then she was doubly in fault. Just as in my opinion on a night so dark and at a place so badly lighted the car driver should have proceeded with special care and modified speed, so I think a foot-passenger in attempting to cross the street should have exercised even more than ordinary caution. It is only a conjecture, but I fancy that Mrs M'Lean as she angled across the street had her attention centred on the westward-bound car which would be directly in her line of vision. But however that may be, she failed in my opinion to exercise reasonable care in attempting to cross the street, and so contributed to the distressing accident which brought about her death.

My verdict accordingly is for the defenders.”

The pursuers reclaimed.

The following were referred to:— Frasers v. Edinburgh Street Tramways Company, 1882, 10 R. 264, 20 S.L.R. 192; M'Allester v. Corporation of Clasgow, 1917 S.O. 430, 54 S.L.R. 401; Watson v. Corporation of Glasgow, 1917, 54 S.L.R. 593.