Scottish Court of Session Decisions

This case arose from an action tried before Lord Mure and a jury last July, in which the pursuer sought to recover damages from the defenders on account of an accident he met with, owing, as he alleged, to their fault. He is senior partner of the firm of John Stewart & Sons, carrying on a lucrative trade as nurserymen and seedsmen in Dundee and in Dorsetshire. Much of their business is due to his activity in obtaining orders on the journeys which he makes for the firm during two or three months of the year. On 13th January last he returned, as was his custom, from Dundee to Broughty-Ferry, where he lived, by the 8–35 P.M. train. There were three gentlemen in the carriage with him. All of them got out before him. He had a small parcel in hi3 hand, and on getting out, though with the aid of the handle of the carriage, doubled his right foot under him. He fell, and became unconscious from pain for a moment or two. On recovering, and being assisted up, he pointed out to the guard and porter an inequality in the pavement, which had, he said, caused the accident. He suffered severely from the injury, was confined to bed for four days, and for about ten days longer to the house. He gradually became able to resume business, but far from as actively as before; and, in consequence of this inability for active exertion, he had been deprived, since the 13th of April, of the salary of £32 a month allowed to him in addition to his share of the profits. His outlay for medical attendance, &c, exclusive of fees to Edinburgh doctors, amounted to about £50. The testimony of various eminent medical gentlemen who had attended him, was to the effect that the sprain was of a very severe character, so severe as to be worse ultimately than a broken leg.

The height of the carriage above the platform was about 3 feet 1 inch; and the depression in the platform was about 3 feet long, 14 inches wide, and variously represented as from 1J to 1J inches deep. There were three or four lamps on the platform, the nearest of which was 35 feet distant; and the evidence on the subject of the amount of light was exceedingly discrepant. The officials at the station alleged it was sufficient, and that no complaints of want of it had been made; and one or two witnesses for the company spoke to the station being well lighted. While, on the other hand, several witnesses had complained of its darkness; and one of the gentlemen who assisted the pursuer to rise said it was so dark at the time that they could not see the hole till the guard's lamp was brought. There was a like difference of opinion as to the excellence of the light on the opposite side of the platform. Several railway officials and engineers from various

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parts of the county eulogising it; and one or more remarking that there were greater inequalities on the pavements in Edinburgh. Some witnesses spoke to complaints of the height of the carriages above the platform; while some professional witnesses considered such height advantageous and usual.

When the evidence had been led, the defenders' counsel moved the judge to withdraw the case from the jury, on the ground of want of evidence; but he declined to do so, and the jury found unanimously for the pursuer, with one shilling of damages.

The pursuer moved for a new trial; and the defenders tendered a bill of exceptions, in which, however, they ultimately did not insist.