 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Nair v. Glasgow Corporation [1923] ScotLR 323 (03 February 1923) URL: http://www.bailii.org/scot/cases/ScotCS/1923/60SLR0323.html Cite as: [1923] SLR 323, [1923] ScotLR 323 |
||
[New search] [Printable PDF version] [Help]
Page: 323↓
[
Process — Jury Trial — Hearing on Rule for New Trial — Rule Granted at Instance of One of Two Defenders — Necessity for Pursuer's Concurrence.
Facts:
When a vehicle is entering a road from another road there is a duty upon the driver to drive in such a way as will not endanger the traffic using the other road, and the traffic on the other road must accommodate itself to the entrance of the vehicle so as not to endanger it, and has no right to disregard it and continue course and speed.
Circumstances in which the Court refused to disturb a verdict of a jury finding that the driver of a tramway car was responsible for a collision between the tramway car and a lorry
Page: 324↓
which had emerged from a road leading into that along which the tramway car was proceeding. Macandrew v. Tillard, 1909 S.C. 78, 46 S.L.R. III; and Robertson v. Wilson, 1912 S.C. 1276, 49 S.L.R. 916, commented on.
In an action of damages for personal injuries against two defenders the pursuer obtained a verdict against one of the defenders. The unsuccessful defender moved for a new trial on the ground that the verdict was contrary to evidence. A rule was granted, and at the hearing the Court intimated that if the pursuer did not support the verdict it could not be sustained. The pursuer thereupon intimated that she supported the verdict and intended to concur in the argument for the successful defenders.
Mrs Mary Buntin or M'Nair, Glasgow, pursuer, brought an action against the Glasgow Corporation and John Steven & Company, contractors, Govan, defenders, for £500 damages in respect of injuries sustained by her through a collision between a tramway car belonging to the first named defenders in which she was a passenger and a motor lorry belonging to the second named defenders.
The parties averred, inter alia—“(Cond.2) On or about the morning of 19th September 1921 the pursuer, after being released from her professional duties, boarded an electric car going to Paisley Road Toll, at the top of Cumbernauld Road, with the intention of proceeding home. She took a seat inside the car. while the car was proceeding down Belgrove Street it collided with a motor lorry which was crossing the street in front of it and had almost got clear of the car rails, and the pursuer was seriously injured as after mentioned. (Cond.3) The said accident was due to the fault of the driver of the said car, who was a servant of the first-called defenders and was at the time acting in the course of his employment. He was driving the car recklessly and carelessly, failed to keep a proper look-out, and to have the car under proper control. It was his duty to drive carefully, to keep a proper look-out, and to have the car under proper control. All these duties he failed to perform. The said accident was also due to the fault of the driver of the said motor lorry, who is the sole partner of the second-called defenders' firm, or alternatively to his fault alone, in respect that he suddenly and without warning emerged at a considerable speed from Brandon Street into Belgrove Street and attempted to cross the latter street immediately in front of the said electric car. The averments of both defenders in answer hereto in so far as not coinciding herewith are denied. ( Ans. 3 for the Corporation of the City of Glasgow) Denied that the said accident was due to fault of these defenders' servant who was driving their car. Denied that the said driver was driving the car recklessly and carelessly, and that he failed to keep a proper look-out, and to have the car under proper control. The statement of the duties of the said driver is admitted. Denied that he failed to perform those duties, and that the accident was the result of any such failure on his part. Explained and averred that the said car, after stopping at the car station opposite the railway station in Bellgrove Street, proceeded at a moderate rate of speed along Belgrove Street towards Brandon Street, which enters Belgrove Street at right angles from the east. As the car approached Brandon Street the driver sounded his gong. When the car was within a short distance of the north-most corner of Brandon Street a motor lorry, the property of the other defenders J. Steven & Company, driven by John Steven, a partner in the said firm, suddenly and without warning emerged at a considerable rate of speed from the said Brandon Street on the wrong side of that street, which was the north side and the side nearest to the approaching car, and attempted to cut across Bellgrove Street diagonally to the west side thereof in front of the car. Immediately he caught sight of the said motor lorry the driver of the car applied his magnetic brake, but the motor lorry emerged from Brandon Street at a moment when the car was in such a position that it could not be brought to a standstill before it struck the motor lorry. It is further explained and averred that the said collision was due solely to the fault and negligence of the driver of the said motor lorry, who drove his lorry at an excessive rate of speed out of a side street on to a main street and on his wrong side of the said side street, and failed to keep a proper look-out for traffic on the main street, and especially for approaching tramcars, which he knew or ought to have known ran along that street. Further, the driver of the motor lorry failed to give any warning whatsoever of his emergence from the side street, and he failed to have his lorry under proper and effective control. Quoad ultra these defenders admit and adopt the averment of the pursuer in the condescendence under answer with respect to the fault of the driver of the motor lorry with the exception of the word “also” in that averment. The averments of the defenders second called in their answer 3 are denied, and in particular it is denied that the driver of these defenders' car failed to keep a proper look-out owing to his attention being distracted by a vehicle which was moving alongside of him. ( Ans. 3 for John Steven & Company) The averments of the pursuer in regard to the servant of the Corporation of Glasgow driving the said tramway car at the time of the accident are admitted. Quoad ultra denied. Explained that these defenders, who were not originally called as defenders, were in no way to blame for said accident, which was entirely due to the fault of the driver of the said tramway car. The said driver was proceeding at an excessive rate of speed and was not keeping a proper look-out, his attention being directed to a vehicle running alongside of him which he
Page: 325↓
was trying to pass and had not his car under proper control. Further, he failed to sound his gong or whistle or give warning of his approach. Had the said driver been keeping a proper look-out and going at a reasonable rate no accident would have happened. If he had had proper control of his car he could easily have avoided the accident. The allegations made by the other defenders against these defenders' driver are denied. These defenders' lorry was being driven at a slow rate of speed on its proper side of the roadway, its horn was repeatedly sounded before and upon reaching Bellgrove Street, and it had almost cleared the tramway rails when the tramway car, driven recklessly, collided with the rear end of it. The driver of the lorry was keeping a good look-out. The case was tried before Lord Ashmore and a jury on 14th, 16th, and 17th November 1922. The jury having returned a verdict in favour of the pursuer, and also in favour of defenders John Steven & Company, and assessed the pursuer's damages at £100, the defenders the Corporation of Glasgow moved for a new trial on the ground that the verdict was contrary to evidence.
On December 2, 1922, the Court granted a rule.
The nature of the evidence as bearing on the above averments sufficiently appears from the Lord President's opinion.
At the hearing, counsel for the pursuer, in response to an indication from the Court that if she did not support the verdict it could not be sustained, intimated that the pursuer supported the verdict and intended to concur in the argument of the defenders John Steven & Company.
Argued for the defenders John Steven & Company—The verdict should not be set aside. There was evidence upon which the jury was entitled to find that the driver of the lorry was justified in proceeding to cross the street, and that the collision was due solely to the fault of the driver of the tramway car. These were purely jury questions. There was no rule that the driver of a vehicle emerging from a side road was bound to give way to main road vehicles in all circumstances. The decision in M'Andrew v. Tillard, 1909 S.C. 78, 46 S.L.R. III, only applied where there was an apparent danger of collision. On the other hand there was a duty on the driver of a vehicle using a main road to avoid colliding with vehicles emerging from side roads, and he was not entitled to ignore them and continue course and speed— Robertson v. Wilson, 1912 S.C. 1276, 49 S.L.R. 916. The decision in M'Allester v. Glasgow Corporation, 1917 S. C. 430, 54 S. L. R. 401, was purely a judgment on fact and could not apply here. In any event, if there was fault on the part of both drivers, the jury was entitled to hold that the fault of the driver of the tram way car was the proximate cause of the collision— Barty v. Harper & Sons, 1922 S.C. 67, 59 S.L.R. 86.
Argued for the defenders the Glasgow Corporation—On the evidence the driver of the motor lorry could not be excused. He had failed in his duty to give way to the traffic using the main road— M'Andrew v. Tillard ( cit.), per Lord President at p. 80. On the other hand the evidence showed no fault on the part of the driver of the tramway car. It was a logical conclusion from M'Andrew v. Tillard that he was entitled to maintain course and speed until it became evident that the vehicle entering the main traffic was not going to give way. He was, further, entitled to rely on the other vehicle giving way— Robertson v. Wilson ( cit.). When he saw the other vehicle was going to cross he had done all he could to avoid the collision. The driver of the lorry was therefore alone to blame. M'Allester v. Glasgow Corporation ( cit.) was in point. The Court was entitled to interfere with the verdict— Frasers v. Edinburgh Street Tramways Company, 1882, 10 R. 264, 20 S.L.R. 192. Counsel also referred to Clerk v. Petrie, 1879, 6 R. 1076, 16 S.L.R. 626, on the duty of giving signals and seeing that they are obeyed.
At advising—
As has often been remarked, the one question which in a case of this kind has to be kept constantly and steadily in view is whether the verdict is one at which an intelligent jury could reasonably arrive on the evidence submitted to it. Counsel defending a verdict which is attacked on the ground that it is contrary to the evidence often aims at a higher mark, and seeks to persuade the Court that the conclusion on the evidence which the verdict implies is not merely one of two or more views which may reasonably be taken with regard to it, but is the right view. Mr Watt very naturally and very properly did his best to carry the Court with him to that length, but so far as my own opinion goes I am not prepared to say that he succeeded. Reverting, however, to the point on which the propriety of granting a new trial depends, I ask myself whether there was not evidence before the jury in this case on which they were entitled in the exercise of the function of reasonable human judgment—fallible as it is no doubt—to affirm the following six propositions:—1. The lorry came out of Brandon Street on its own side of that street at 5 or 6 miles per hour and turned into Bellgrove Street on an angle or curve to the northward. 2. While proceeding on that angle or curve, the lorry was struck a heavy blow on the hind wheel by a south-going tramway car at a point opposite or nearly opposite the end of the north foot-pavement of Brandon Street. 3. When the lorry first emerged from Brandon Street, and it and the tramway car became visible to each other, the
Page: 326↓
If these six propositions could reasonably be drawn from the evidence as presented to the jury as I think they might (I do not say they would be my conclusions), the jury's verdict seems to me to be unassailable, for it must be kept in view that the jury were entitled to form their own judgment on the credibility of the witnesses. At many points in the evidence of this case serious questions of credibility arise.
But it was maintained on behalf of the Corporation that, even assuming the validity of the fourth of the propositions above enumerated, the lorry was nevertheless inexcusable in respect of its non-compliance with what was called “the rule of main road and side road,” supposed to have been established in Macandrew v. Tillard, 1909 S.C. 78. The argument was, that because the lorry entered Bellgrove Street (said to be a main road) from Brandon Street (said to be a side road), it was not only under the general legal obligation to use all reasonable care to avoid collision with other traffic, including any traffic which might be in Bellgrove Street at the time, but incurred a much heavier one, namely, an obligation to avoid causing any interference with the course and speed of the traffic in Bellgrove Street. The tramway car was said to have “the right of the road” in respect both of its course and of its speed. The course of the tramway car was unalterable owing to its flanged wheels. But the speed of the tramway car being actually such at the time as to create a possibility of mishap if maintained, the lorry must, it was contended, be held to be blameworthy because it did not keep out of the way. This argument attributes to traffic in the main road, in relation to traffic in the side road, a position similar to that which is attributed under the Regulations for the Prevention of Collisions at Sea to a vessel to which it is the duty of another vessel to give way. It will be seen that the argument is founded on a supposed rule of law, which if arising on the facts of the case would have been proper matter for a request to the presiding judge for directions, and (if he refused) for a bill of exceptions.
This is a travesty of anything that was decided in Macandrew v. Tillard or in the subsequent cases ( Robertson v. Wilson, 1912 S.C. 1276; M'Allester v. Glasgow Corporation, 1917 S.C. 430), whatever may be said of some of the expressions used in the opinions. There is no variation in the standard of care exacted by the law of Scotland from all traffic to avoid bringing other traffic into danger. Where variation does occur is in the circumstances in which this universal standard of care has to be applied and exercised. The same precautionary means will not suit all circumstances alike, and the greater the risks involved in the circumstances the higher are the precautions called for in them. In this sense the driver's duty is said to be “higher” in some situations than in others. Generally speaking, the duty of a driver whose course is calculated to disturb or interfere with the ordinary streams of traffic on a road is of this “higher” order. But the actual precautions called for in any particular situation—whether the case be one of turning in or crossing a road, of entering upon or diverting from it—is a practical question,’ and depends on the facts of the particular situation, not on any supposed rule of law putting the whole obligation of avoiding collision on the disturbing or interfering traffic, and still less on any imagined absolution from the legal obligation of care in favour of the traffic which follows the ordinary or main stream.
Suppose a vehicle which forms a constituent of the volume of traffic in a busy street wishes to cross that street to premises on the other side or to turn and go back the way it came. The difficulties of the traffic problem thus presented are aggravated in character simply because the manœuvre involves an interruption of the main or ordinary currents of traffic prevailing in the street. Special methods of care may have to be used by the vehicle before performing and during the performance of this manoeuvre. For example, a warning may have to be given, a little time may have to be allowed, to other vehicles following the ordinary stream of traffic to adjust their movements, and so on. But it is obvious that the actual form of precaution required belongs to the sphere of practical good sense, depends on the circumstances of the case, and is not prescribed by any special code of legal right on the part of the traffic following the ordinary stream, and of legal obligation on the part of the interrupting traffic. In short, the legal duty of traffic to other traffic is general and invariable—the manoeuvre of the turning or crossing vehicle must be so performed as not to endanger the other traffic; but the other traffic, duly apprised of the intended manoeuvre, has no right at law to ignore it and to continue course and speed, but must accommodate itself to the manoeuvre so as not to endanger the vehicle performing it. The common-sense solution of the problem may be seen in operation any day in the streets of our large cities.
The case just considered does not differ in any essential particular from that of the incursion into a road carrying a considerable volume of through traffic of an occasional vehicle coming from a relatively unfrequented side road and desiring to turn
Page: 327↓
The distinction between a “main road” and a “side road” is itself a question of circumstances so variable and uncertain in character as to be unreliable and impracticable in a vast number of instances. The preference—if I may use that expression—shown in Macandrew v. Tillard to the traffic on the road forming the main line of communication between Edinburgh, Queensferry, and the north, over the traffic on the local road between Blackhall and Cramond is explained by the notorious disparity found to exist in that case between them, both in amount and in importance, which made it legitimate to regard the latter as interrupting the regular streams of the former. But that preference implied no right whatever on the part of the traffic in the busier road to refuse to accommodate the entry of the side-road vehicle on to the more important road, by maintaining course and speed, notwithstanding that its presence and intention are made known. How far the decision in Macandrew v. Tillard is from setting up a special code of legal rights and duties for the case of a side-road vehicle entering or crossing a main road is shown by the obvious reflection that the adoption of appropriate methods of care by a side-road vehicle seeking to leave the side road and join the regular current of traffic in a main road is equally incumbent on a vehicle in the main road seeking to leave it and join the sparser current of traffic on a side road.
In no case is there any justification for the idea that the traffic whose current is disturbed by an incoming vehicle is absolved in law from the duty of itself using care to avoid collision with the incoming vehicle once its presence is made known. Accordingly it seems to me impossible to accept the view that the lorry was inexcusable in the present case on the ground that it was bound in law to conform itself to the supposed legal right of the tramway car to persist in the speed of its approach notwithstanding the overt presence of the lorry on the street.
Page: 328↓
For these reasons I have no doubt that the verdict must stand. I desire, however, to add that I entirely agree with what your Lordship has said in regard to the case of Macandrew v. Tillard and to the law which is applicable to the present case.
Mr Robertson's contention was that the tramcar was entitled to maintain its speed, because Brandon Street is a street with a smaller volume of traffic than Bellgrove Street, the former being what he called a side street and the latter a main street. I am unable to accept this view. I do not think that vehicular traffic in a large city, where so many streets of various kinds continually abound in traffic, could be safely carried on in accordance with it. Crossing vehicles in such streets are a constantly recurring feature which has to be reasonably provided for. The high degree of care incumbent on any vehicle coming laterally into a stream of traffic is undoubted. But I think there is a corresponding duty of care incumbent on vehicles in the street on which crossing lines of traffic open, and it appears to me that to give a licence to the latter vehicles to maintain course and speed on a nice appreciation of the comparative volumes of traffic in one street and another would be a dangerous rule.
Page: 329↓
As regards the present case I assume that the rule of the road, as I understand it, was explained to the jury, and although I do not myself agree with the verdict in so far as it exonerates the driver of the lorry, I think that it was a possible view for the jury to take that the circumstances as they presented themselves to the driver of the lorry were such as justified him in crossing the road without any transgression of the rule of the road.
I assume that prima facie it was the duty of the driver of the motor lorry before he left the side street to look out for traffic on the main street and to give way to any traffic coming along the main street. These precautions I take to be incumbent on him in accordance with a rule of the road which is based on common sense and which has been judicially recognised in a series of decisions both in this Court and in the Sheriff Courts, but which of course must be applied reasonably with reference to the circumstances ( Macandrew v. Tillard, 1909 S.C. 78; Campbell v. Train, 1910 S.C. 556; Robertson v. Wilson, 1912 S.C. 1276; M'Allester v. Corporation of Glasgow, 1917 S.C. 436). In 1910 in Campbell v. Train (cited supra), Lord Justice-Clerk Macdonald stated and justified what he described as a well-established rule, and I take from his opinion the following passage—“Now,” said his Lordship, “it is a well-established principle that where there is a main road, such as a road capable of carrying two lines of tramway rails on it—a main road leading from one public place to another—any person entering with a vehicle from a cross road is bound to look out and keep clear of traffic coming along the main road, and this is for a very obvious reason. Traffic coming along the main road is necessarily expected to be going at a considerable pace because it is not coming to a corner at all. It is crossing a corner but not coming to a corner in order to turn, whereas the driver who is going to go round the corner necessarily should be going slowly.
Assuming the general rule as above stated, however, the question remains—Is the Court justified in view of the verdict of the jury—a verdict against the Corporation and in favour of the other defenders—in holding that the driver of the motor lorry disregarded the rule and was guilty of contributory negligence? Now the jury had evidence before them to this effect—that the driver of the tramway car when approaching the mouth of Brandon Street was behaving and driving carelessly and incautiously, and that in consequence, instead of seeing that the motor lorry was in the act of crossing, and putting on his brake in time to avoid an accident, he negligently drove on into the lorry. If the jury believed that evidence, that would explain their verdict in point of fact and would support it in point of law. I refer to such cases as M'Dermaid v. Edinburgh Street Tramways Company, Limited, 1884, 12 R. 15; Radley v. London and North-Western Railway Company, 1876, 1 App. Cas. 754; and Barty v. Harper & Sons, 1922 S.C. 67. I think, therefore, that the answer to the question under consideration must be in the negative. It is a question of fact, and on questions of fact, including questions of credibility, the verdict of the jury is conclusive, unless indeed the Court could hold that there is no evidence to support the verdict, which in my opinion the Court is not warranted in doing.
For the reasons which I have given I have come to the conclusion that the rule ought to be discharged.
The Court discharged the rule.
Counsel for the Pursuer— Morton, K.C.— Macdonald. Agents— Hume, M'Gregor, & Company, S.S.C.
Counsel for the Defenders the Glasgow Corporation— Robertson, K.C.— Dods. Agents— Campbell & Smith, S.S.C.
Counsel for the Defenders John Steven & Company— Watt, K.C.— Paton. Agents— Fraser, Stodart, & Ballingall, W.S.