BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Intosh v. Waddell [1896] ScotLR 34_53 (31 October 1896) URL: http://www.bailii.org/scot/cases/ScotCS/1896/34SLR0053.html Cite as: [1896] ScotLR 34_53, [1896] SLR 34_53 |
||
[New search] [Printable PDF version] [Help]
Page: 53↓
[Sheriff of Lanarkshire.
The pursuer in an action of damages averred that the servant in charge of a horse and van belonging to the defender left the same unattended in the street, and that the animal bolted and dashed into the pursuer's shop window, causing considerable damage. The defender maintained that the action was irrelevant, in respect that the mere averment that the horse was left unattended in the street did not necessarily imply fault. Held that the pursuer was entitled to an issue.
James Duncan M'Tntosh, jeweller, Glasgow, raised an action in the Sheriff Court of Lanarkshire against R. D. Waddell, sausage manufacturer, Glasgow, concluding for payment of £130.
The pursuer averred that on 11th October 1895 the defender was the owner of a spring van and a pony, that at a certain hour on that day the servant of the defender who was, or ought to have been, in charge of said vehicle and animal, left the same unattended in a certain street, and that the said animal bolted and dashed into the window of the pursuer's shop breaking the window and damaging his stock, and thereby creating great damage and loss, and also great damage, loss, and inconvenience to the pursuer's business.
The pursuer further averred—“(Cond. 4) The said animal attached to said vehicle was, contrary to the Glasgow Police Acts 1866 and 1895, and particularly section 149, sub-section 22, of the Glasgow Police Act 1866, left by defender's servant in said street unattended, and being, as known to the defender, a spirited animal, it should not have been so left. (Cond. 5) The said accident was caused by the fault of the defender or his servants, for whom he is responsible, in respect that the said animal while attached to said vehicle was left unattended as it should not have been, and contrary to the Glasgow Police Act, more especially as said animal was known by the defender to be spirited.”
The Sheriff-Substitute ( Erskine Murray) having allowed a proof before answer, the Sheriff ( Berry) adhered.
The pursuer appealed to the Court of Session for jury trial under the Judicature Act 1825 (6 Geo. IV. cap. 120), sec. 40, and proposed issues.
Argued for the defender—The action was irrelevant and ought to be dismissed. (1) No relevant ground of fault was specified. It was not in itself a fault to leave the horse unattended for a few moments— Shaw v. Croall & Sons, July 1, 1885, 12 R. 1186; Hayman v. Hewitt, Peake's Addl. Cas. 170, per Lord Kenyon 171. To make his case relevant, the pursuer should have averred that the servant had left the horse and cart for a certain period of time, or, e.g., in order to go into a public house. The reference to the Glasgow Police Acts, without specification of how they were contravened, could not make the averments relevant.
Argued for the pursuer and appellant—The risk of leaving a horse unattended must always be borne by the party owning the animal— Illidge v. Goodwin, 5 C.P. 190, per Tindal, C.-J., at p. 192; Morrison v. M'Ara, March 6, 1893, 23 R. 564, per Lord Young at p. 568.
Lord President—The Court think the case must go to trial before a jury.
Page: 54↓
The Court approved of an issue.
Counsel for the Pursuer and Appellant— Salvesen— J. Purves Smith. Agent— T. C. Smith, S.S.C.
Counsel for the Defender and Respondent— Ure— Cook. Agents— Simpson & Marwick, W.S.
