Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Glasgow. The widow and only child of the late Alexander Calder sued the Caledonian Railway Co. for the sum of £500, to be paid to each, as reparation and solatium for the loss sustained by them through his death, which was caused as they averred, by the negligence of the defenders and their servants.

The facts of the case, as disclosed by the evidence, were shortly as follows:—On the night of the 22d May 1868, Calder, who was a guard in the employment of the North British Railway Co., was engaged as guard of a goods train from Glasgow to Dunfermline. As the train was approaching Stirling from the south, on the down or west line of the Caledonian Railway, over this part of which the North British Railway Co. have running powers, the last carriage (being the brake van) in which Calder was, along with some other carriages, became detached from the rest of the train, which moved on past a set of points and then stopped at a place where, in the ordinary course, the train would have been backed along the points on to the Caledonian up line, and thence on to the Dunfermline line. The points were in charge of a man named Sinclair, a servant of the Caledonian Railway Co. After the fore part of the train had stopped, he kept the points so as to allow it to return on the down line, and showed a white light or “all right” signal. In consequence the driver, not being aware that any waggons had been detached, or that there was any special occasion for proceeding slowly, and supposing that the signal was given in order to take the train on to the up line as usual, backed the engine and fore part of the train with some speed on to the detached waggon. The concussion threw Calder out of his van, and in consequence of the injuries so received, he died on 17th June following.

It was not clear from the evidence whether or not Sinclair noticed that the train was incomplete, but there was little doubt that he was to blame in either case. If he did not notice the fact, he was guilty of negligence in not doing so. As every train ends with the guard's brake van, it is easy for the pointsman to notice whether the train is complete or not, and it is his duty to do so. Further, if he did not observe that the brake van was wanting he was guilty of negligence in not adjusting the points so as to have taken the returning portion of the train off the down and on to the up line, instead of allowing it to go along the former line till it ran into the detached waggon and guard's van left thereon. If, on the other hand, Sinclair did observe the break which had occurred in the train, then he was guilty of negligence in shewing, as it is clearly proved he did, the white light instead of the green, thereby signalling that all was right, and inducing the driver to believe that he was about to cross from the one line to the other, and that he might safely do so at the usual rate of speed, the result of which was that the collision became inevitable, the points not having been adjusted in crossing.

The defenders pleaded that they were not liable on the following grounds:—(1) Because the accident was mainly due to the driver of the North British train backing his engine at an unwarrantable speed. (2) “Contributory negligence” on the part of Calder in not getting out of his van when it stopped. (3) Because, even supposing the accident to have been caused by the carelessness of Sinclair, inasmuch as the North British Railway Co. have running powers over their line, Calder and Sinclair must be considered to have been fellow-servants acting in one common employment, viz., passing the train from the Caledonian line on to the Dunfermline line.

The Sheriff-Substitute ( Dickson) repelled the

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defence, and found the defenders liable to each of the pursuers in the sum of £300. Both parties appealed—the defenders on the merits, and the pursuers on the amount of the damages; but the Sheriff ( Glassford Bell) adhered.

The defenders appealed to the Court of Session.

Muirhead for them.

Macdonald, for the pursuers, was not called upon.

At advising—