Scottish Court of Session Decisions

William Ramsay, ironmonger, residing in Cross-hill, was returning home on the afternoon of 8th October 1879 by tramway car. It stopped at Victoria Road, nearly opposite Dixon Avenue, to allow passengers to alight. Ramsay accordingly stepped off the car on the left-hand side, and as he was crossing the street was knocked down by a waggonette belonging to Thomson & Sons, wholesale cabinetmakers, Ritchie Street, Glasgow, which was attempting to pass the car on the left in the space between it and the street, and one at least of the wheels went over his ankle. The result was that he sustained severe personal injuries, his legs being severely bruised, and his nervous system so shattered that he had been prevented from attending to business ever since. In these circumstances he raised the present action of damages against Thomson & Sons for £250, his ground of action being that the accident had happened by and through the fault, culpable negligence, and gross carelessness of the defenders' servant, who had driven in a careless, reckless, and culpable manner.

He pleaded—“(2) The pursuer having, in consequence of the foresaid injuries, caused by the fault, culpable negligence, and gross carelessness of the defenders' servant, sustained loss, injury, and damage to the amount of £250 sterling, decree ought to be pronounced therefor against the defenders, jointly and severally, or severally, in name of damages, and as solatium due to the pursuer.”

The defence was that the accident was the result of the pursuer's own carelessness; or, at all events, that it was no fault of defenders' servant, who was driving in a proper place, and in a proper and careful manner.

The pleas in defence were:—“(1) The defenders were not liable in the sum sued for, in respect that the accident occurred entirely

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through and in consequence of the carelessness and fault of the pursuer himself; or otherwise, and separatim.—(2) The pursuer having contributed to the accident by his own conduct, had no claim against defender, and the latter should be assoilzied, with expenses.”

The Sheriff — Substitute ( Erskine Murray), after hearing evidence, found:—“(1) That pursuer, an elderly gentleman, residing at Cross-hill, was returning home on the afternoon of 8th October 1879 by tramway car; (2) that when the car came to Dixon Avenue it was stopped, and a lady alighted, and hurried across the roadway to the footpath; (3) that the pursuer, who had been sitting with some friends about the middle of the car, also got up, went out on the platform, and proceeded to leave the car in a leisurely way, taking hold of the handle on the body of the car as he stepped off, and facing forwards in the direction in which the car was going, apparently because at the same moment the conductor was starting the car; (4) that a waggonette belonging to the defender A. Thomson senior, residing at Langside, and driven by a lad, then of sixteen, was following the car southward along the rails when the car stopped, on which the driver of the waggonette turned it to the left, so as to pass between the car and the footpath on the same side; (5) that he was driving at an easy rate, by no means fast, but did not appear to have slackened his pace; (6) that the lady crossed about three yards in front of the waggonette horse, and the pursuer, when he got out facing south, did not notice the coming waggonette at all, but made another step into the road, and the waggonette apparently struck the pursuer, knocked him down, and one at least of the wheels went over his ankle: (7) that he was pretty severely injured, was laid up for some months, incurred a doctor's bill, and was prevented from attending to business for a longer period; and had now raised the present action of damages.” His Lordship therefore found “on the-whole case, and in law—(1) That the defenders' driver could not be held in the circumstances to have acted wrongly in passing the car on the left-hand of the car; (2) that he must be held in the circumstances, however, to have driven incautiously, and that the main cause of the accident was his want of due care in attending to the safety of the lieges as he ought to have done; (3) that the pursuer was also guilty of contributory negligence in not looking about him before he got off the car, and having in consequence thereof walked straight against the waggonette: Therefore assoilzied defenders from the craving of the petition,” &c.

He added this note:—“The old rule of the road, that a faster vehicle coming from behind must pass a vehicle in front on the right or off side, is manifestly inapplicable to the case of tramway cars, and the practice has naturally been changed. Except in the case of tramway cars, it was absolutely necessary to have a fixed rule in the case of passing, for unless the driver in front knew which side of him the driver from behind was bound to keep, collisions would be inevitable. But a tramway car is fastened to its rails, and cannot move either way, and therefore the faster vehicle behind it is safe to take whichever side is open, so far as it is concerned. But it must be remembered, moreover, that the object of all rules of the road is to avoid collisions. Now, the very safest place for a vehicle passing a tramway car to be in is on its near or left side, for no other moving vehicle could possibly be there coming from the opposite direction. Therefore the proper side, as a rule, on which to pass a tramway car is manifestly on its left side.

“But all the more is it necessary for a driver passing a tramway car on its left side to be on the look-out for passengers dismounting, as that is the side on which they may be expected to dismount. In the present case the waggonette driver had been warned by the car stopping. He therefore ought to have been on the look-out for more passengers than one alighting, and should have held back until the car was fairly on its way again. Not doing so, he acted recklessly, and was the chief cause of the pursuer's accident.

The point of contributory negligence is that on which the Sheriff-Substitute has had most difficulty. On the whole, however, he cannot but think that the pursuer was in fault in not looking about him before he descended, or even after he descended. Had he done so, he certainly would have seen the waggonette and avoided the accident. His friend Mr Brown, who was in the middle of the car, saw the waggonette fully 10 or 20 yards before it ran down Mr Ramsay, and the latter could certainly have seen it had he looked. Now, a certain amount of caution is necessary on the part of passengers dismounting in the middle of a public thoroughfare; and, on the whole, the Sheriff-Substitute thinks that the pursuer failed to exercise the necessary caution.”

On appeal the Sheriff-Principal ( Clark) found that the pursuer had established liability against the defender Andrew Thomson for the injuries received on the occasion in question, and that upon two grounds—(1) that the driver of his waggonette, for whom he was responsible, committed a breach of the rule of the road in passing the tramway car on the left side; and (2) that he was guilty of recklessness in so passing while the pursuer was in course of alighting from the car. He gave decree accordingly for £50.

He added this note:—“The findings in fact of the Sheriff-Substitute may be taken in the main as substantially correct. It is as to the findings in point of law that I consider myself compelled to differ with him. It appears to me that the driver of the waggonette was in fault in two respects. First, he was wrong in passing on the left side of the car which he was overtaking, inasmuch as this was in direct violation of the rule of the road; and second, he was in the wrong in continuing to drive forward when he saw the car at a standstill and in course of discharging passengers. These two faults to some extent run the one into the other, but both may be dealt with separately, and either seems to form ground of liability. First—Passing on the left-hand side of the car. The long established and well-known rule of the road in this country is that when a vehicle meets another it shall pass on its own left, and when one vehicle overtakes another the overtaking vehicle shall pass on the right of that overtaken. There is not much to be said for these rules in the abstract. For all practical purposes they might have been made just the reverse, as is the case in most Continental countries, and would work equally well. The important thing is that there shall be a fixed rule one way or the other, and that it shall be rigidly adhered to. In this way only

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can collisions be prevented, as experience has aptly demonstrated. Now, important as the observance of the rule as it stands is in the case of ordinary vehicles, it seems to become of still greater importance when tramway cars are on the road, inasmuch as it forms the basis and reason of a rule specially applicable to that class of vehicles, and absolutely necessary for the protection of their passengers. The rule referred to is No. 2 of the bye-laws and regulations made by the municipal authorities in relation to the Glasgow Tramways, and confirmed by the Sheriff of the county, under the powers conferred by the Glasgow Corporation Tramways Act 1875, and is as follows:—‘Every passenger shall enter or depart from a carriage by the conductor's platform in the rear of the carriage on the side next the pavement and not otherwise.’ This last provision obviously proceeds on the assumption that no other vehicle shall be passing on the side next the pavement, and that the way shall therefore be clear for the passenger to gain the side pavement in safety. Now, while the old rule of the road is in observance, the left side of the car must always be clear; but if that rule is to be violated, and vehicles are allowed to pass on the right when meeting, and on the left when overtaking a tramway car, the rule that passengers shall leave by the left of the car, instead of conducing to their safety, will directly throw them in the way of every passing vehicle. This consideration is of such vital importance to public safety that even though the old rule of the road might admit of relaxation in the case of ordinary vehicles without very great risk, its rigid observance when a tramway car is met or overtaken would seem imperative. It is said, however, that a contrary practice has prevailed in Glasgow, and that non-observance of the old rule of the road when a car is overtaken has not only become common, but is in some sense the proper thing to do. On turning, however, to the evidence, it will, I think be seen that this view is altogether without sufficient foundation. … I cannot, therefore, hold that there is any reliable evidence to show that the old rule of the road, so salutary in itself, and indeed so necessary for the safety of the public using tramway cars, has been at all abrogated, either by authority or practice. It is no doubt plain enough that a rigid adherence to the old rule brings with it certain inconveniences to ordinary vehicles when overtaking tramway cars. Yet this inconvenience seems much exaggerated. It merely amounts to this, that the overtaking vehicle must remain behind the car for a short time till the way is clear. But this inconvenience, whatever it may be, cannot be set against the great dangers to public safety which a departure from the old rule would necessarily involve. I must therefore hold that in passing the car on the left side the driver of the waggonette was plainly violating an important rule of the road.

“But, further, and in the second place, he was guilty of recklessness in another respect, equally, if not more, important. All the witnesses concur in this, that if the waggonette driver chose to attempt to pass on the left side, he was bound to do so with the utmost care, and should not have attempted to do so when passengers were in the act of alighting, and when the car was stationary for that purpose. Now what are the facts? The car had stopped to let passengers alight. A lady had gone out, and the pursuer was following. The car still remained stationary, as it was bound to do till all desiring to do so had alighted. The driver of the waggonette, on his own showing, saw what was going on while he was yet a great way off, and in perfectly good time to pull up, yet he drove on before the pursuer had got across to the pavement by the only side he was entitled to use, the waggonette was driven against him, and the injuries libelled were sustained. Upon this ground alone, therefore, it seems to me plain that liability has been incurred. It was maintained that the pursuer is barred from recovering damages by contributory negligence. I do not think this is at all made out. In the first place, it is not every sort of omission that founds such a plea. The utmost that can be said against the pursuer in this respect is that he did not look back as well as forward before alighting. Now, it is very questionable whether in strictness he was bound to do this. If I am right in my view of what is the rule of the road and the rule of the tramway cars, the pursuer was entitled to assume that in ordinary circumstances no vehicle whatever would come up behind the car on the left side, by which alone he was entitled and bound to alight. But, in any view, the omission, even if it were an omission, was not of a kind sufficient to sustain the plea of contributory negligence.

The next question is the amount of damage. On a careful consideration of the medical evidence and the other facts in the case bearing on this subject, I have come to be of opinion that the damages claimed are very much in excess of that which is proved, and that, all things considered, £50 is a sufficient sum to award.”

The import of the proof sufficiently appears in the Sheriff-Substitute's judgment and the Judges' opinions.

The defenders appealed, and argued—(1) Tramway cars were to be regarded as fixed objects, and therefore their servant was acting with discretion, and with a proper regard to the rules of the road to be adopted in passing such objects, when he drove past the car on left hand side. (2) Their servant was driving at a moderate speed; and if the pursuer had used reasonable care he would have escaped the accident. Therefore the damage must lie where it fell, and they must be assoilzied.

The pursuer replied—He was getting out of the car on the left-hand side in accordance with a bye-law of the tramway company which made this provision, having regard to the fact that the proper rules of the road require that a passing vehicle should do so on the right. The defenders' servant therefore was on his wrong side of the road, and even if he was on the right side, he was not entitled to run over the lieges— Clerk v. Petrie, June 19, 1879, 6 R. 1076; Radley v. Directors of London and North-Western Railway Company, 1 L.R. App. Cases (H. of L.) 754.

At advising—