Ballard v North British Railway Company

JurisdictionEngland & Wales
JudgeThe Lord Chancellor.,Viscount Haldane,Viscount Finlay.,Lord Dunedin,Lord Shaw of Dunfermline,.
Judgment Date26 January 1923
Judgment citation (vLex)[1923] UKHL J0126-1
Docket NumberNo. 6.
CourtHouse of Lords
Date26 January 1923

[1923] UKHL J0126-1

House of Lords

Lord Chancellor.

Viscount Haldane.

Viscount Finlay.

Lord Dunedin.

Lord Shaw.

Ballard
and
North British Railway Company.

After hearing Counsel, as well on Tuesday the 7th as Thursday the 9th, days of November last, upon the Petition and Appeal of Fred Ballard, of No. 114, Don Street, Woodside, Aberdeen, praying That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland of the First Division, of the 27th of May 1922, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of the North British Railway Company, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor of the 27th day of May 1922, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Interlocutor of the Lord Ordinary in Scotland (Lord Anderson), of the 24th day of June 1921, thereby recalled, be, and the same is hereby, Restored: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs of the Action in the Court of Session and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the certificate thereof, the Court of Session in Scotland, or the Lord Ordinary officiating on the Bills during the Vacation, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.

The Lord Chancellor.

My Lords,

1

This is an appeal by the pursuer from an interlocutor pronounced by the First Division of the Court of Session, by which that Court recalled an interlocutor of the Lord Ordinary and assoilzied the defenders (the Respondents on this appeal) from the conclusions in the action. The object of the action was to make the defenders liable in damages for injury caused to a steam trawler belonging to the pursuer while loading coal at Tayport Harbour, and the question to be determined was whether the injury was due to the negligence of the defenders or their servants.

2

The system in use in coaling vessels at Tayport is not in dispute and is concisely described in the Appellant's case as follows: —

The coal is conveyed in wagons along a track leading from the main line to a coal hoist on the quay. This line runs from the main line up a gradient, and after the highest point is reached, at a less gradient downwards to the hoist. The up gradient from the direction of the main line is 900 feet long, and the rise is 11 feet 6 inches. The length from the top of the bank to the hoist is 350 feet, and the fall is about 2 feet. The level of the line at the point at which it reaches the hoists is about 11 feet above the top of the quay.

The train of loaded trucks is pushed by an engine up the inclined line of rails. Each loaded wagon, after it has crossed the crest of the high level road is braked by the guard in charge of the train, whose duty it is to take his stand at or near that point, and to see that each wagon is securely braked as it passes him. After the loaded wagons are placed in position on the down slope the engine is uncoupled and removed. Thereafter the wagons are manipulated by servants of the coal merchant whose coals are to be loaded into the vessel.

When a vessel is to be coaled, each wagon in turn is run down the incline, controlled by its brake, and on to the cradle of the hoist which projects beyond the line of the quay. After the wagon has been emptied it is run out of the hoist and down another line of rails, known as the runaway track, back to the main line at Tayport Station.

3

On the 11th June 1920 the Appellant's steam trawler called the "Regina" was lying off the hoist, and a wagon loaded with coal was being emptied from the hoist on to the deck. While this operation was in progress, a train consisting of sixteen loaded wagons and a guard's van was being pushed by an engine up the slope of the line. The engine was, of course, at the extreme rear of the train, the guard's van being next to it. Above the guard's van were three loaded wagons intended for another destination, the nearest of them to the guard's van being a wagon belonging to the Lochgelly Iron and Coal Company; and above them came thirteen wagons loaded with coal and intended to be placed in position on the down slope and to be afterwards utilised in coaling vessels in the manner above described. The whole train was connected by couplings in the usual manner. What then occurred will appear from the following extract from the evidence of John Player, the guard of the train: —

As we started to go to the high level road, I stationed myself on the front of the leading wagon. That is in accordance with the regular practice when preparing wagons. From there I gave the necessary signals to the driver. The road first goes uphill and then downhill towards the hoist. ( Q.) At what speed were the wagons sent up the hill on this occasion? ( A.) Well, it is difficult to give the exact speed, but it was the same speed as any other day with the same amount of wagons. This was work which I had done frequently. I jumped off when the leading wagon came to the top of the gradient. I had no difficulty whatever in jumping off because of the speed.

It is difficult to guess the speed at which the wagon off which I jumped was going, but I would say about 6 or 8 miles an hour. ( Q.) Have you to run to keep abreast of it or can you keep abreast of it by walking? ( A.) I can keep abreast by walking, and part, you know, walking fast. When I got off and moved alongside the leading wagon, I pinned down the brakes. I had no difficulty in doing that. After I had pinned down the brake of the leading wagon, I went to the second wagon and pinned it down too. It was then still moving at a speed with which I could easily keep up. After that it began to increase more in speed and I wondered why it was not decreasing as it usually did, and I turned round to signal to my driver to steady up, and when I turned round I was amazed to see that there was a gap between the van and the 16 wagons. When I saw that the engine was no longer coupled to the wagons I tried to pin down more wagons, but the wagons had increased their speed and I was unable to pin them down. I had not noticed any sudden jerk upon the couplings; as a matter of fact, I thought the wagons had been coupled off. ( Q.) You mean you thought they had been uncoupled? ( A.) Yes, I thought they had come away the same as they do when they are uncoupled. The runaways got out of control and did a lot of damage.

4

To this statement it should be added that the whole sixteen wagons got entirely out of control, ran down the slope at a high rate of speed, and breaking through two sets of check-blocks which were at the bottom of the slope, dashed against the wagon which was being unloaded and drove it on to the top of the wheelhouse of the "Regina." Three loaded wagons fell on the deck of the vessel, but the fourth wagon got jammed at the top of the cradle and held up the others. The "Regina" sustained considerable injury, and one of the trimmers who had been working at the cradle of the hoist was injured and shortly afterwards died. It was afterwards found that a link of the coupling which held the wagon of the Lochgelly Company to the guard's van had snapped; and on examination being made, it was ascertained that this link was defective, not having been properly welded. On the day of the accident the driver of the train, David Sharp, reported the occurrence to the Company; and the following extract from his report shows the view which he took of the matter at the time:—

"I beg to report during shunting operations at Tayport, when propelling a lift of wagons up the bank (consisting of 15 wagons coal, I goods and brake van) to the Coal Hoist. When 9 or 10 wagons were up the bank the remaining wagons and engine still on the incline, the wagons broke away, caused by coupling link of Lochgelly Coal Company's wagon No. 324 second from engine giving way, with the result that 16 wagons ran forward towards the Coal Hoist.

"…. Coupling link very defective."

5

On the same day the guard also reported to the Company that the coupling was defective and that its breaking was the sole cause of the accident.

6

On the 6th October 1920, the Appellant raised this action against the Company for damages for injury to the ship, and by his second Condescendence stated his causes of action as follows:—

"The engine-driver pushed the wagons up the slope at an excessive and dangerous rate of speed. No attempt was made to brake each wagon as it reached the top of the incline. It is believed and averred that at the time of the said occurrence the guard was not stationed at his proper place, but, on the contrary, was beside the engine. The result of the aforesaid fault or negligence on the part of the defenders' servants was that the wagons got out of control, and the damage to the 'Regina' ensued. But for the culpable neglect of...

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