Scottish Court of Session Decisions

Agnes Sharp or Brown, wife of James Brown, commercial traveller, with consent and concurrence of her husband, and the said James Brown for his own right and interest in the premises, sued David Fulton, engraver to calico printers, Glasgow, personally and as curator and administrator-in-law to his son John Fulton, a minor fourteen years of age, and also the said John Fulton, in the Sheriff Court at Glasgow, for £400 in name of damages in respect of injuries sustained by the female pursuer through a fall occasioned by a horse which belonged to the said David Fulton, and was being at the time ridden by the boy John Fulton.

The pursuers' condescendence, after stating that the horse in question belonged, at the date of the accident after mentioned, to David Fulton, and was “a powerful and spirited animal, and known to him to be such,” and that the boy, his son, “was at the date before referred to quite incapable of managing and controlling the said animal, and known to the other defender to be so,” narrated that on 6th October 1880, while the pursuers were walking near the Alexandra Park gate in Glasgow, the female pursuer was knocked down by the horse, which was being furiously ridden by the said boy John Fulton, and was seriously injured thereby, in the manner and with the results set forth on record. The pursuer further averred—“(Cond. 7) In consequence of the injuries before referred to,

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for which the defenders are responsible, Mrs Brown has suffered much. Her system has sustained a severe shock, and may be permanently affected. The pursuer James Brown has suffered much anxiety, has been put to great trouble and inconvenience, and has expended considerable sums of money in payment of medical outlays and fees; and the defenders are jointly and severally, or severally, liable to the pursuers in reparation and solatium, which they estimate at £400.” “(Cond. 8) The said horse was known to both of the defenders as a powerful and spirited animal, but notwithstanding this the defender David Fulton culpably and carelessly authorised or allowed the boy defender to take it out for exercise, or so culpably, negligently, and carelessly kept the said animal, that the boy defender was on the morning in question in charge of the said horse, which he had neither the requisite strength nor experience to manage, being only about fourteen years of age and of slender build. It is believed and averred that the said animal has prior to the morning in question been in charge of the boy defender, when he was likewise unable to govern or control it, which was well known to the defender David Fulton, or ought to have been.”

The Sheriff-Substitute ( Spens) having allowed a proof, the pursuer appealed to the Court of Session for jury trial.

On their proposed issue being lodged, counsel were heard in Single Bills on an objection by the defenders to the relevancy of the pursuers' averments.

The defenders argued—No relevant ground of damage to found an issue was set forth on record. There was no averment of “fault” against either of the defenders. As against the father, it was quite insufficient to aver that he culpably authorised or allowed the boy to ride a horse though he knew it to be strong and the boy weak. As against the boy the averment was even weaker—the best of riders might, without “fault” of his, be run away with on horseback, and the averment came to no more than that.

Argued for pursuers—If the horse was a strong one, and the father knew his boy could not control him, he was bound, on the analogy of such cases as Galloway v. King, June 11, 1872, 10 Macph. 788; Campbell v. Ord & Maddison, Nov. 5, 1873, 1 R. 149; King v. Pollock, Oct. 27, 1874, 2 R. 42, to take measures to keep him off the horse.

After a discussion the pursuers amended Cond. 8 so as to read thus:—“The said horse was known to both of the defenders as a powerful and spirited one, but notwithstanding this the defender David Fulton culpably and carelessly authorised or allowed the boy defender to take the horse out for exercise, which he had neither the requisite strength nor experience to manage, being only about fourteen years of age, and of slender build. The said horse had, prior to the morning in question, been in charge of the boy defender, when he was likewise unable to govern or control it, which was well known to the defender David Fulton, or ought to have been.”

The issue, as finally approved for the trial of the cause, was as follows:—“Whether on or about 6th October 1880, at or near the Alexandra Park gate, Dennistoun, Glasgow, the female pursuer was knocked down and injured by a horse then belonging to the defender David Fulton, and at the time being ridden by the defender John Fulton, through the fault of the defenders, or either of them, to the loss, injury, and damage of the pursuers?”