Scottish Court of Session Decisions

John Russell, miner at the Merryton Colliery, was killed on the Lesmahagow branch of the Caledonian Railway on 6th November 1878, and his wife and children thereafter raised this action for damages against the railway company, who pleaded that they were not in fault, and that Russell was guilty of contributory negligence.

The Merryton Colliery is on the north side of the Lesmahagow Railway, and the deceased resided on the south side. The nearest way to the colliery from the south side of the railway was by a side road leading from the high road, and crossing the railway, which was double-lined, by a level-crossing. On the left side of the road there was a fence formed of sleepers set on end, and on each side of the railway there was a gate. There was no bridge. Close to the crossing there was a pointsman's house, from which the gates were opened and shut when horses, carts, and machines required to cross. There was also a ladder to enable foot-passengers to cross the fence.

About six o'clock on the morning of the day in question Russell and a companion named Robertson were going to their work at the colliery, and as usual they made use of the level-crossing, but while in the act of going across a passing engine came up and killed Russell. Robertson reached the other side in safety.

It was, inter alia, averred by the defenders—“When the deceased came to the crossing the engine with empty waggons was in course of shunting on to the down-line of rails (or the west-most line of rails), and pushing the waggons, the engine being reversed. From this the deceased ought to have known that the engine which was in course of going to Stonehouse for the passenger waggons was coming up. An engine had passed that crossing at the same hour in the morning for a long time prior to the accident, and this was well known to deceased and other workmen.”

The leading features of the proof will be found in the following note to the interlocutor of the Sheriff-Substitute ( Birnie), who found for the pursuers, awarding £400 damages.

“ Note.—The defenders are proprietors of the Hamilton and Lesmahagow Railway. There is a level-crossing to the Merryton pit, which is on the north side of the railway. A branch road leads to the crossing from the public road on the south of the railway, with a fence formed of sleepers set on end on the left side. There is a high pointsman's box within the railway fence, also on the left side. There are gates at the crossing, opened from the pointsman's box, with steps for foot-passengers. There is a slight curve to the north on the line towards Hamilton. The home signal is nearly opposite the pointsman's box. It is not disputed that the deceased was entitled to use the crossing.

On the morning of 6th November last, about six o'clock, an upgoing train of empty waggons had been shunted, and was standing on the down or south rails at the level-crossing. The engine of the train was blowing off steam. The morning was calm and clear, but dark.

As the deceased was crossing to his work he was run over and killed by an engine on the up-rails going towards Lesmahagow.

The pursuers are his widow and children, and sue for damages. The defenders deny fault, and plead contributory negligence.

1st. The cases of Grant v. Caledonian Railway Company, 10th December 1870, 9 Macph. 258, and Thomson v. North British Railway

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Company, 16th November 1876, 4 R. 115, will be found instructive. The rule of law is that the defenders were bound to use ‘all reasonable care, caution, and skill.’ And applying that rule to the present case, it seems to me that while they were not bound to have a bridge instead of a crossing, or to have a watchman at the crossing, or to slow their engine, the upcoming engine was bound to whistle. The crossing was one used by the miners going to the Merryton pit, and six o'clock was about the hour when they crossed. The combined effect of the sleeper fence, the pointsman's box, the stationary engine and train, and the blowing off the steam, rendered it difficult, if not impossible, for the deceased to see the upcoming engine until he had crossed in front of the stationary engine, and the noise of the steam had a tendency to prevent the rumble of the upcoming engine from being heard.

The pursuers' witnesses say that the upcoming engine did not whistle. Lambie, the engine-driver, and Allan, the fireman of that engine, say they did whistle. It does not seem to me necessary to decide which of these statements is correct, as the only whistle alleged by Lambie and Allan to have been given appears to me to have been insufficient. When Lambie came in sight of the home signal it was against him. He did not require to stop, but he slowed, and when the signal was turned to clear, at which time he was from 80 to 100 yards on the Hamilton side of it, he says that he gave the usual short single whistle which it is the practice to give to warn the brakesman to take off the brake, and to make the pointsman aware that his clear signal has been observed.

Mr Curror, the district superintendent, called this ‘touching the whistle.’ I do not think the giving such a whistle was using all reasonable care and caution. I think Lambie was bound to give what Mr Curror called an ‘alarm whistle,’ that is, a continued whistle, so as to give notice of a moving and approaching engine.

2d. I do not think the deceased was guilty of such contributory negligence as to bar the pursuers' claim. In Grant v. Caledonian Railway Company Lord Kinloch said that the company were not entitled to exact a ‘high degree of intelligence and self-possession’ from the individual injured. In the present case Russell had to be at his work about six o'clock, and the level-crossing was his usual road of access. He did not know how long the shunted train might remain where it stood, and he was not bound to wait until it had moved.

It was difficult, if not impossible, for him to see the upcoming engine until he had crossed in front of the shunted engine. The latter engine was blowing off steam, and he may have thought it was about to start.

The upcoming engine was not whistling. It is probable that the noise of the steam prevented its rumble from being heard. Even after passing the stationary engine, only one light of the upcoming engine was visible, and as it so happened Robertson crossed immediately before the deceased, this no doubt threw the deceased off his guard. I do not found my opinion on the curve on the line or the speed of the upcoming engine, as the engine could have been seen sufficiently far off to have enabled the deceased to escape at whatever speed it was going.

3d. The deceased was forty-one years of age, and was making miners’ wages. I have calculated that for ten years he would have earned those wages, and that on an average they would have been £1 a-week; that amounts to £520. One-third of this sum, however, would have been spent on himself, so that the damage suffered by the pursuers, according to my estimate, is £347. They are in addition entitled to damages for solatium, and I have made the amount £400 in all. The eldest child is sixteen, and the second eleven. The four youngest children are from eight years to a few months old.

It was suggested by the defenders that the deceased's mind was so affected by epileptic fits that he was to have been confined in an asylum. That is not averred on record; and although it had been, I would have been unwilling to weigh the improbabilities of his recovery in such an action as this.”

The Sheriff (Clark) adhered, and added this note to his interlocutor:—

“ Note.—There are two issues raised here—fault on the part of the defenders, and if that be established, contributory negligence on the part of the deceased, so as to form a sufficient defence. As regards fault on the part of the defenders, I think that is sufficiently established. It is quite clear that in not giving notice of the upcoming engine by a sufficient whistle the defenders were not using all reasonable care and caution. It is next to be considered whether the deceased so contributed by recklessness to his own death that his representatives are barred from insisting in the present action.

I do not think this is made out. It is quite possible that by the use of extreme caution, or the exercise of great agility, the deceased might have escaped the consequences of the defenders' fault, but I do not think that the circumstances of the present case entitle the defenders to found on the conduct of the deceased as showing less care of his own safety than is ordinarily to be expected.”

The defenders appealed, and argued—(1) There had been no fault on their part. The crossing was not properly speaking a level-crossing; it was what was called an occupation—being part of a private and not a public—road. The line itself and its crossings had been approved by the Board of Trade, and so had the rules of the company. Now, there was nothing in these rules enjoining whistling by an engine when about to pass over an occupation crossing—even with level-crossings proper it was only in very special cases that this was made imperative, such as the one at Stirling. If it were done at every occupation crossing it would lose all effect, for crossings of this nature were very numerous. (2) There had been contributory negligence on the part of the deceased. It was plain on the evidence that he could have seen the engine coming up if he had looked. The Sheriff-Substitute in his note admitted that. And he was bound to look, for he was not entitled to treat an occupation crossing of this sort as if it was part of a highway. Its primary purposes were railway purposes.

Authorities as in Sheriff-Substitute's note, and also Dublin, Wicklow, and Wexford Railway v. Slattery, July 31, 1878, L.R., 3 App. Ca. 1155.

The respondents argued on the grounds stated in the Sheriffs’ notes.