Carson v Magistrates of Kirkcaldy
| Jurisdiction | Scotland |
| Judgment Date | 23 October 1901 |
| Date | 23 October 1901 |
| Docket Number | No. 7. |
| Court | Court of Session |
Lord Pearson, Lord Justice-Clerk, Lord Young, Lord Trayner.
Reparation—Negligence—Relevancy—Burgh—Safety of Public—Faulty condition of street—Private street used by public—Liability of magistrates—Liability of owner of solum—Proof or Jury Trial.—
In an action of damages at the instance of the representatives of a person who, the pursuers averred, was accidentally killed owing to the faulty condition of a partly formed private road within a burgh, which the public were in the habit of using, the pursuers called as defenders, conjunctly and severally, or severally, (1) the magistrates and council of the burgh, and (2) the owner of the road, the former on the ground that at common law and by the Burgh Police (Scotland) Act, 1892, they were responsible for the proper making and maintenance of the road, and the latter on the ground that at common law and by the Act it was his duty to make the road safe for public use or to prevent the public from using it.
The Lord Ordinary (Pearson) held that the pursuers were entitled to an issue against the Magistrates and Town-council, and dismissed the action quoad the owner of the road.
Held (rev. the judgment) that a case for inquiry had been stated against both defenders, and cause remitted to the Lord Ordinary to take a proof before answer.
This was an action of damages by the widow and children of Alexander Carson, butcher, Kirkcaldy, in respect of the death of Alexander Carson through falling into a hole in a road in the burgh of Kirkcaldy. The Provost, Magistrates, and Town-council of the burgh, and John Oswald of Dunnikier, proprietor of the solum of the road in question, were called as defenders, jointly and severally, or severally.
The pursuers averred that Carson met his death, on 7th January 1900, by falling in the dark into a hole in Meldrum Road, Kirkcaldy. The hole had been made on 1st January 1900 by a motor-car sticking in the road, which was in an unformed condition, and having to be dug out. The hole, which was 8 feet long, 4 feet wide, and 20 inches deep, was situated at a point in Meldrum Road about 20 feet or thereby west of the north end of Montgomery Street. The hole had been left entirely unrepaired, unguarded, and unlighted. (Cond. 3) ‘Said Meldrum Road is a public thoroughfare, which was laid out and opened some years ago, and has since been regularly used both by foot-passengers and for vehicular traffic. Curbstones defining the line of the carriageway of said road from the footpath were laid down, and gas-lamps, which are maintained and lighted at the expense of the defenders, the Town-council, were placed at intervals along the line of said curbstones. Up to the date of the accident after mentioned said Meldrum Road had never been completely formed.’ In particular, the part thereof extending from east of Montgomery Street to a point about 100 feet west thereof, had not, up to the date of the accident after mentioned, been properly levelled, paved, or causewayed, or macadamised, or laid with road metal. The parts of Meldrum Road to the east and west of the unformed portion above described were much better formed than said intermediate part. (Cond. 5) ‘The death of the said Alexander James Edwin Carson was due to the fault or negligence of the defenders, or those for whom they are respectively responsible. The said Meldrum Road, where he met his death, is one of the streets and public thoroughfares of the burgh of Kirkcaldy, and as such is at common law under the care of the defenders the Provost, Magistrates, and Town-council of the royal burgh of Kirkcaldy. It was their duty to see that the said road was maintained in a safe condition so as to prevent danger to passengers. They, however, failed in said duty.’ Then followed averments, based on the Burgh Police (Scotland) Act, 1892, that it was the duty of the defenders the Magistrates and Town-council to have the said road put into and maintained in a safe condition for passengers, and that it was their duty to have had the said hole protected or enclosed to prevent danger therefrom, and that they had failed to perform these duties. These averments, in view of the fact...
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