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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hendry v. M'Dougall [1923] ScotLR 198 (24 January 1923) URL: http://www.bailii.org/scot/cases/ScotCS/1923/60SLR0198.html Cite as: [1923] ScotLR 198, [1923] SLR 198 |
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Page: 198↓
[Sheriff Court at Stirling.
The driver of a horse and cart left them unattended in a public street opposite the door of a shop while he went into the shop to execute a message for his employer, the owner of the horse and cart. He was delayed there for a few minutes waiting his turn to be served. Meantime the horse bolted, and the wheels and axle parting from the cart struck and injured a woman who was walking on the pavement. In an action of damages at her instance against the driver's employer, the owner of the horse and cart, held that in the circumstances the owner was liable.
Observations ( per curiam) on the circumstances in which liability will attach to owners of horses left unattended in the street for damage caused by their running away.
Mrs Jane Anderson or Hendry, certificated nurse, Denny, pursuer, brought an action in the Sheriff Court at Stirling against Elizabeth M'Dougall, Fankerton Farm, Denny, defender, for payment of £500 in name of damages for personal injuries sustained by her in consequence of a horse harnessed to a cart belonging to the defender bolting while standing unattended in the street.
Proof was allowed and led.
The facts of the case and the import of the proof so far as material to this report were as follows:—The defender on 6th December 1921 sent a horse and cart into Denny in charge of a youth of sixteen named Tough in order to get an empty tin filled with paraffin at a shop in the village. The horse, which was about nine years old, had been in the stable for two days and had a light load on the occasion in question, but it was normally a quiet animal. Tough left it at the shop door with its head turned from home while he went into the shop with the empty tin. He was kept waiting for a few minutes because there were other customers waiting to be served. While he was inside, the horse wheeled round with the cart and bolted in the direction of its home. No one was able to say what startled it. In its course the axle and wheels of the cart became separated from the body, and mounting the pavement injured the pursuer, who was walking there.
On 29th July 1922 the Sheriff-Substitute ( Dean Leslie) assoilzied the defender. The pursuer appealed to the Sheriff ( Macphail), who on 3rd October 1922 adhered.
The pursuer appealed, and argued—If a horse and cart were left on the street unattended, the owner was liable for any damage done by the horse bolting— Illidge v. Goodwin, 1831, 5 C. & P. 190, at p. 192; Engelhart v. Farrant, [1897] 1 QB 240, at p. 245; Shaw v. Croall, 1885, 12 R. 1186, per Lord Mure at p. 1189, 22 S.L.R. 792. Nothing short of an inevitable accident could excuse him— M'Ewen v. Cuthill, 1897, 25 R. 57, 35 S.L.R. 58; Milne & Company v. Nimmo, 1898, 25 R. 1150, 35 S.L.R. 883.
Argued for the defender—Every case depended on the circumstances involved, and the cases cited did not apply to the present circumstances. [ Lord Ormidale referred to Wright v. Dawson, 1895, 5 S.L.T. 196.] The general principle on which such cases had been decided was in the defender's favour— Hayman v. Hewitt, Peake's Add. Cases 170; Lynch v. Nurdin, 1841, 1 Q.B. 29; Clark v. Chambers, 1878, 3 QBD 327; Tollhausen v. Davies, 1888, 57 L.J., Q.B. 392; Smith v Wallace, 1898, 25 R. 761, 35 S.L.R. 583; Bevan on Negligence (3rd ed.), vol. i, pp. 161, 545; Glegg on Reparation (2nd ed.), p. 383.
The material facts lie within narrow compass and are not in dispute. They are these—The defender on 6th December 1921 sent a horse and cart into Denny in charge of Tough, a lad of sixteen. His mission was to get an empty tin filled with paraffin at a shop in the village. He drew up the horse at the shop door, and left it with its head turned from home while he entered the shop to execute his errand. He was delayed for a little time because there were other customers being served in the shop. In Tough's absence the horse, for some unexplained reason, bolted and made for home. The cart became disintegrated, the axle and the wheels parting from the body. They bowled along, mounted the pavement, and injured the pursuer, who in the exercise of her undoubted right was walking there. To these facts fall to be added that the horse was a quiet animal of ten years or thereby, and that the cart was not provided with what are known as lynch pins. These are pins which lock the iron bolts connecting the body of the cart to the axle, and which thus, it is said, prevent them from springing out of position. It was originally alleged by the pursuer that the horse had bolted on a previous occasion, and that Tough was not a competent driver. But these charges were, however, abandoned in the debate before us. What then remains? Two things—(1) a complaint that the defender was in fault because Tough left the horse unattended in a public street while he went
Page: 199↓
[ His Lordship dealt with the second point, which is not reported.]
The other part of the case presents more difficulty. The question remains whether the conduct of the defender's servant Tough was blameworthy. His blameworthiness is said to consist in leaving his horse unattended in a public street while he went into an adjoining shop. Now in my opinion the question whether a driver is in fault in leaving his horse unattended is a question of circumstances, and I agree with what the Lord Justice-Clerk said in M'Ewen v. Cuthill ( 25 R. 57) that “there is no general rule.” Much, for example, will depend on the type of horse, the time during which the driver is absent, the distance to which he goes, and also the character of the locus. Thus I think the famous dictum of Tindal, C. J., in Illidge ( 5 C. & P. 190)—“If a man chooses to leave a cart standing in the street, he must take the risk of any mischief that may be done”—must be read in light of the circumstances in that particular case. In each instance therefore the question is, do the circumstances amount to fault on the part of the defender? This the pursuer in my opinion must aver and prove if he is to succeed. Thus in Shaw v. Croall ( 12 R. 1186), where a horse was left unattended for a short time in a station yard, the Court held that fault was not established, but Lord Shand said—“It is, in the first place, important to observe that the cab was not standing in the public street, where perhaps more care would be required; it was standing in what may fairly be described as enclosed ground.” Again, in M'Ewen v. Cuthill, where the defender was held liable for damage resulting from his horse being left unattended, the judgment proceeded on two specialties, to wit, (1) that the driver had gone into the back part of a shop out of sight of his horse, and (2) that the place where the horse was left was within a few yards of passing trains.
Viewing this case, then, as one in which the decision must turn upon the circumstances proved, I feel constrained to hold that the defender's servant Tough was in fault, and that his fault caused the injuries to the pursuer. Tough is, I think, really convicted out of his own mouth, for he says—“It (the horse) was out of my reach and control.” But I do not rest my judgment on this admission, which may be capable of innocent explanation. Apart from the admission, however, it is clear that Tough left the horse unattended in a public street, and that he placed a half-shut shop door between him and it. Indeed, the case is in its circumstances a fortiori of the case of Milne & Company v. Nimmo ( 25 R. 1150), where the driver of a pony opened the gate of a stable yard which separated the yard from the street and went back a few yards to get his coat, and where liability was held established. Here Tough was further from his horse than was the driver in Milne; he left his horse in a public street, while it was left in a yard in Milne; and finally the driver in this case was within an adjacent shop when the horse bolted instead of being but a few yards behind his horse as in Milne.
The case, in my judgment, lies just over the frontier of liability, and I think it is a hard case for the defender. Apart from the fortuitous circumstance that there were some customers in the shop before Tough there would in all probability have been no accident. But regarding the circumstances as a whole, I think that his conduct is proved to have been blameworthy, that the interlocutors of the Sheriffs fall to be recalled, and that decree should be pronounced for the sum at which parties agreed that damages should be assessed in the event of liability being established, viz., seventy pounds (£70).
[ His Lordship dealt with the second point, which is not reported.]
The other ground raises a question of more difficulty. In the Scots cases to which we were referred it is said that the question whether a man in charge of a horse and cart is in fault for leaving the horse and cart unattended in a public street is a question of circumstances, and I am not disposed to dissent from that view. On the other hand it appears to me that when a passer-by is knocked down and injured in a public street by a runaway horse and cart, as the pursuer was, the onus is on the driver or his employer to show that she was placed in this predicament through no fault of his. What were the circumstances in the present case? On reaching Bulloch's shop, the carter, a young lad of sixteen called Tough, took the empty oil can from the cart and carried it into the shop. He left no one to stand by the horse. He could not be served at once as there were other customers to be served before him. He was absent, waiting, for about three minutes He says he kept the horse in view the whole time. This I think is doubtful. According to the witness Scotland who was in the shop, the inner door of the shop was partially closed, and Tough could not readily see out without opening it. “He opened it once and looked out.” Tough says he walked out more than once. The horse was normally a quiet beast about eight or nine years old. It had been in the stable for two days, and had a light load on the occasion in question. While Tough was inside the shop the horse started, wheeled round with the cart, and bolted in the direction of home. No one was able to say by what, if by anything, it was startled. “The horse was away,” Tough says, before he got to the door of the shop.
Now, even if Tough kept the horse in view
Page: 200↓
In the circumstances so disclosed I am not prepared to agree with the Sheriffs in holding that Tough was not in fault. His conduct may not have been very blameworthy, but there was nothing at all to prevent him using greater vigilance and care than he did. For example, he might have called someone out of the shop to get the empty can, or he might have waited and got someone to stand by the horse during his absence in the shop, just as he afterwards did when he had recovered his horse and paid a second visit to the shop to collect his replenished can of oil.
Having in view the added fact that Tough entered the shop to deliver his parcel, it appears to me that what Lord Young says in Milne v. Nimmo applies a fortiori to the present case. “I am of opinion that if a carter leaves his cart to deliver a parcel at a shop door, and his horse runs away and knocks down someone in a street, the risk is with him and his master and not with the innocent person on the street.”
No case really analogous to the present was cited to us in which a driver or his employer was assoilzied. In Smith v. Wallace & Company ( 25 R. 761) the action was held to be irrelevant for want of specification. Wright v. Dawson ( 5 S.L.T. 196) and Hayman v. Hewitt ( (1798) Peake Add. Cas. 170) were not concerned with injury done to a member of the public but with damage done to goods which the defenders were engaged under contract to carry and deliver. The case of Shaw v. Croall ( 12 R. 1186) again was materially different in its circumstances from the present, for in it the horse and cab were left standing not in a public street but in enclosed ground. Had they been left standing in a public street greater care, Lord Shand observes, would have required to be taken.
In the cases of M'Ewen v. Cuthill ( 25 R. 57) and Milne v. Nimmo, where the defenders were held liable, the negligence may have been greater, but in neither of them do I find either a rule of law or a state of facts which would entitle a driver, acting as Tough in the present case acted, to absolvitor from blame. While it is said that there may be circumstances in which a driver or carter may without fault leave his horse unattended without negligence in law being attributed to him, even though an accident results from his doing so, it is difficult to figure such a case. It depends perhaps on the meaning that is given to the word “unattended.” If that signifies merely that the driver is not in all circumstances bound to be at his horse's head or holding on to the reins, then I assent to the proposition. But the driver must always, it seems to me, be in such proximity to the horse as to leave him, in a reasonable sense, master of the situation, and able if the horse shows signs of becoming restive to get to its head and steady it.
I cannot hold that in the circumstances of the present case there was put on the general public who were using the streets with due regard to their safety the risk and peril of the unattended horse bolting and in its flight injuring one of their number. As I have said, the risk of such a happening was with Tough and the defender. A horse and cart left unattended in a public street is always a potential source of danger. In Illidge v. Goodwin ( 5 C. & P. 190) a horse and cart were left unattended in a public street. The horse got startled and backed into the shop window of a china merchant and damaged his goods. The owner of the cart endeavoured to prove that it did so because a passer-by had struck it. The jury intimated that they did not believe the witnesses called to support this defence. Tindall, C.-J., said that even if they were speaking the truth it did not amount to a defence, and added—“If a man chooses to leave a cart standing in the street he must take the risk of any mischief that may be done.”
That dictum has been approved in several cases cited to us— Lynch v. Nurdin ( 1 A. & E. 29); Clarke v. Chambers ( 3 QBD 327); Engelhart v. Farrant & Company ( [1897] 1 QB 240, Lopes, L.J., at pp. 245.6).
On the whole matter I agree that the appeal should be sustained and the pursuer found entitled to damages. Parties are agreed that these should be assessed at £70.
The action can only succeed on proof of fault on the part of the defender or someone for whom she is responsible. It is necessary,
Page: 201↓
If the case is looked at from the standpoint which I have thus indicated, I do not think that the defender is entitled to be assoilzied. The horse had been in the stable for two days before the accident, and the lad in charge had gone to such a distance from the horse's head that he was not only unable to control the horse, but even to make any real attempt to prevent its bolting. I think that the Sheriffs erred in a wrong application of legal principle to the proved facts in the case, and that the pursuer was entitled to a decree.
It is manifest that no presumption of fault arises from the fact that a horse bolts. Bolting may take place when the horse is being most carefully driven and in circumstances which negative any suggestion of negligence. It is true that bolting may take place in circumstances, admitted by a defender or proved by a pursuer, which place on the defender an onus of explanation, but as a general rule in cases of this nature negligence must be averred and proved before a decree for damages can be pronounced. Both the English authorities and those in our own Courts make it quite clear that the circumstances of each case proved or admitted determine whether or not negligence has been established. The question of fault is always correlated to the question of duty, and the duty of one who is in charge of a horse towards the persons or property of third parties is to protect them from the activities of the animal of which he is in charge. This duty is discharged by the exercise of reasonable care
Page: 202↓
The present case is undoubtedly a narrow one, but I have reached the conclusion, differing from the Sheriffs, that the driver was not attending to his horse when it bolted and that he was therefore guilty of negligence for which the defender is responsible in law. The driver chose to go inside the shop to wait his turn when he need not have done so but might have waited outside in the vicinity of his horse. He put himself in a situation in which it was impossible for him to exercise any control, vocally or manually, over his horse should it become restive. The result was that before he could reach the place where he he had left his horse it had turned round and bolted and he was able to do nothing.
The case seems one to which the language of Lord Young in Milne ( 25 R. 1153) is peculiarly applicable—“If a carter leaves his cart to deliver a parcel at a shop door and his horse runs away and knocks down someone in the street, the risk is with him and his master and not with the innocent person on the street.”
I am therefore of opinion that the pursuer must have decree for the agreed-on damages of £70.
The Court recalled the interlocutor appealed against, found that the defender was liable in respect of the fault of her servant in leaving the horse unattended in the street, and granted decree for £70 as the agreed-on amount of damage.
Counsel for the Pursuer and Appellant— Burns. Agent— C. Forbes Ridland, S.S.C.
Counsel for the Defender and Respondent— MacLean. Agents— Macpherson & Mackay, W.S.