Brown & Lynn v Western SMT Company Ltd
| Jurisdiction | Scotland |
| Judgment Date | 03 November 1944 |
| Docket Number | No. 5. |
| Date | 03 November 1944 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION
Reparation—Negligence—Road traffic—Motor vehicles in collision—Leading and following vehicles—Emergency created by pedestrian—Leading vehicle brought to sudden stop.
A motor lorry was travelling along a public street followed at a distance of 25 to 30 feet by a motor omnibus, the speed of both vehicles being approximately fifteen miles an hour. The driver of the lorry, in order to avoid a pedestrian, swerved suddenly to the left and pulled up almost instantaneously, and the driver of the omnibus, when he realised that the lorry was stopping, swerved to the right and applied his brakes, but, although he acted with reasonable promptitude, he did not succeed in avoiding a collision. The driver of the lorry had no time to give any signal, and the driver of the omnibus had not seen, and had no reasonable chance of seeing, the pedestrian.
Held (diss. Lord Stevenson) that the fact that the driver of the omnibus, although allowing a sufficient space between the vehicles in which to deal with the ordinary exigencies of traffic, had followed the lorry so closely that he could not cope with its exceptionally abrupt stop did not amount to negligence upon his part, and, accordingly, that the owners of the omnibus were not liable to the owners of the lorry for the damage sustained by their vehicle.
Observations upon the duty of the driver of a motor vehicle which is following another motor vehicle.
Brown & Lynn, carriers and contractors, Bearsden, brought an action in the Sheriff Court at Glasgow in which they concluded for payment of £212, 9s. 2d. in name of damages sustained by a motor lorry belonging to them which had been run into by a motor omnibus belonging to the defenders, Western S.M.T. Company, Limited, Glasgow.
A proof was led before the Sheriff-substitute (Guild), the facts established at which are stated in the following findings in fact contained in the interlocutor of the Second Division:— "(1) That the pursuers are a firm of carriers and contractors, having their office at 5 Clathic Avenue, Bearsden, Dumbartonshire; (2) that defenders are a limited company carrying on business as omnibus proprietors, and that they have a place of business at Waterloo Street, Glasgow; (3) that on or about 19th November 1942, at about 1.30 p.m., a motor lorry, registered number CGD 147, the property of the pursuers, was being driven eastwards in Paisley Road, Glasgow, by Andrew Gardner, a servant of the pursuers, in the ordinary course of his employment; (4) that very shortly after passing Shearer Street, a pedestrian, who subsequently gave his name as James Smith, 100 Duke Street, Glasgow, set out from the north pavement of Paisley Road with the ostensible intention of crossing from the north side to the south side; (5) that the said pedestrian, when he left the pavement on the north side of Paisley Road, was a short distance in front of pursuers' lorry, but was at that moment in no danger of being run down by the pursuers' lorry which was approaching him; (6) that Paisley Road at this point is approximately 45 feet wide; (7) that the said pedestrian had got at least half way across the street when he apparently observed a motor omnibus approaching him from the east; (8) that the said motor omnibus was on its own half of the road, and was travelling at a moderate speed; (9) that the said pedestrian had ample time to cross the street in front of the west-going motor omnibus; (10) that on observing the approaching motor omnibus the said pedestrian became confused and moved quickly back into the track of pursuers' lorry, which had by that time come into close proximity to the line on which he was crossing the street; (11) that on observing the said pedestrian, pursuers' driver, the said Andrew Gardner, swerved sharply to his left and braked his lorry, bringing it to an exceptionally abrupt stop; (12) that the said pedestrian was not struck by pursuers' lorry but fell on to the roadway; (13) that, in the emergency created by the action of the pedestrian, the action taken by pursuers' driver in braking and swerving was a reasonable and proper manœuvre; (14) that the emergency created by the action of the pedestrian occurred so suddenly that the pursuers' driver had neither time nor opportunity to give any signal by hand or otherwise to following traffic that he was bringing his lorry to a sudden stop; (15) that the point at which pursuers' lorry came to a halt was approximately sixty yards to the east of the point where Shearer Street joins Paisley Road; (16) that there is a traffic point at the junction of Shearer Street and Paisley Road, and that pursuers' lorry had been held up there; (17) that as pursuers' lorry drew away from the halt at Shearer Street, a motor omnibus, also travelling eastwards belonging to the defenders and driven by John Hartley, a servant of the defenders, in the ordinary course of his employment came up behind the lorry; (18) that as the defenders' omnibus approached Shearer Street, the driver slowed down slightly but did not require to bring his vehicle to a halt; (19) that when pursuers' lorry started up at Shearer Street the defenders' omnibus was approximately 80 feet behind it; (20) that as the two vehicles proceeded eastwards the motor omnibus gradually made up on pursuers' lorry; (21) that when pursuers' lorry driver was compelled to take action for the purpose of saving the pedestrian, the defenders' motor omnibus was not more than a bus length behind it, about 25 to 30 feet; (22) that defenders' motor omnibus was following in the track of pursuers' lorry; (23) that as soon as he observed that pursuers' lorry was coming to a stop, the driver of defenders' omnibus swerved outwards towards the centre of the roadway, and applied his brakes in the endeavour to avoid coming into contact with the lorry; (24) that the effort of the defenders' driver to avoid the lorry was almost successful, but that the motor omnibus collided with the off-rear portion of the pursuers' lorry; (25) that the driver of the defenders' omnibus did not at any time observe the pedestrian to avoid whom pursuers' driver braked and stopped, and had no reasonable chance of so doing; (26) that at the time of the collision both vehicles were travelling on their own side of the road; (27) that at the time of the collision both vehicles were travelling at a moderate speed of about 15 miles an hour; (28) that both vehicles were damaged as a result of the collision."
The pursuers pleaded, inter alia:—"(2) The pursuers having suffered loss, injury and damage through the fault of the defenders' said servant, for whom they are responsible, are entitled to reparation therefor."
On 11th May 1944 the Sheriff-substitute (Guild) found in fact and in law that the collision was due to the fault of the defenders' driver; sustained the second plea in law for the pursuers; and granted decree for £116, 9s. 2d. His interlocutor contained a finding in fact (No. 28) "that the driver of the defenders' motor omnibus was not keeping a sufficient distance behind the pursuers' lorry to enable him to draw up his vehicle in the event of the pursuers' lorry being compelled to come to a sudden stop by reason of traffic conditions."1
The defenders appealed to the Court of Session, and the case was heard before the Second Division (without Lord Jamieson) on 24th October 1944.
At advising on 3rd November 1944,—
LORD JUSTICE-CLERK (Cooper).—I should normally be slow to differ in a case of this kind from an experienced Sheriff-substitute, but it is plain that his ground of judgment against the defenders has been affected by an imperfect formulation of the underlying legal principle. The Sheriff-substitute has extracted from three Sheriff Court decisions an alleged rule which determines whether a following driver is guilty of negligence when he collides with a vehicle which is travelling in the same direction in front of him, and which has been suddenly stopped. According to this rule the inference of negligence on the part of the following driver arises, or is excluded, according to the propriety or impropriety of the leading driver's conduct. I do not think that this general formulation necessarily follows from the cases relied upon; but, whether it does or not, I am unable to accept it. The conduct of the leading driver will, of course, have an important bearing upon liability for an accident in every case in which the conduct of both drivers is put in issue, either by a plea of contributory negligence or by double allegations of fault. But the duty of the following driver is a continuous duty which persists independently of any actual emergency or of the leading driver's reaction to such emergency, and the question whether the following driver has failed in his duty cannot depend upon whether the leading driver has fulfilled his. It is implicit in the Sheriff-substitute's statement that, if the one driver acted with propriety, the other must necessarily be at fault. This is not so. Especially in a case like the present, where the emergency is created solely by the act of a third party, it is just as likely on a priori grounds that neither driver is at fault. The Sheriff-substitute's ground of judgment being therefore displaced, we are bound to re-examine the question afresh.
We were urged in the course of debate to substitute our own definition of the limits of a following driver's duty, and even to prescribe the proper interval at which successive vehicles should keep station when travelling in a city street. I am not prepared to do so. The distance which should separate two vehicles travelling one behind the other must depend upon many variable factors—their speed, the nature of the locality, the other traffic present or to be expected, the opportunity available to the following driver of commanding a view ahead of the...
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