Clarke v Edinburgh and District Tramways Company, Ltd
| Jurisdiction | Scotland |
| Judgment Date | 11 June 1914 |
| Date | 11 June 1914 |
| Docket Number | No. 85. |
| Court | Court of Session |
Ld. Anderson, Lord President, Lord Johnston, Lord Skerrington.
Process—Record—Reparation—Negligence—Relevancy of alternative and inconsistent averments of fact.
In an action of damages for personal injuries against a tramway company the pursuer averred that she was injured by being thrown off a tramway car, owing to the car starting violently forward as she was about to alight at one of the car's ordinary stopping-places. She averred fault on the part of the conductor of the car, in respect that he had failed to observe that she was about to alight and had failed to give a signal to the driver to stop the car; or, alternatively, fault on the part of the driver, in respect that he had disregarded a signal to stop given him by the conductor.
Held (rev. judgment of Lord Anderson) that, although these alternative averments of fact were contradictory and mutually exclusive of each other, yet, as either one or the other would, if proved, infer liability on the part of the defenders, the pursuer had stated a relevant case.
Dictum of Lord President M'Neill in Finnie v. LogieUNK, (1859) 21 D. 825, applied.
Process—Proof—Witnesses—Order to furnish pursuer with names of defenders' employees.
In an action of damages for personal injuries, brought against a tramway company, the pursuer averred that she was injured through the fault either of the conductor or of the driver of a car belonging to the defenders. After the record was closed, but before issues were adjusted, the pursuer moved for an order on the defenders to supply her with the names of the driver and conductor in question.
The Lord Ordinary (Anderson) having refused the motion, held that the motion ought to have been granted.
Observation of Lord President Dunedin in Henderson v. Patrick and Thomson, Limited, 1911 S.C. 246, applied.
On 21st November 1913 Mrs Annie Batchelor or Clarke brought an action of damages for personal injuries against the Edinburgh and District Tramways Company, Limited.
The pursuer averred that, on an evening named, she and her husband were travelling by one of the defenders' cars, and that, as the car approached one of the places fixed by the defenders at which all cars should stop for the purpose of setting down and picking up passengers, (Cond. 4) ‘… the pursuer and her husband rose from their seats inside the car and proceeded to the rear platform of said car in order to be in readiness to alight whenever said car should stop at said stopping-place. When pursuer and her husband arrived at said rear platform the car was already slowing down, and the pursuer took hold of the handrail at the window of said car with her right hand in order to steady herself. Instead of the car coming slowly to a stop, as it should have done, suddenly and without warning the car started violently forward with a jerk which threw the pursuer off her feet from said platform and precipitated her from said car on to the street.’ The pursuer then averred that, as the result of this fall, she sustained certain injuries, and proceeded:—(Cond. 6) ‘The said accident was occasioned by the fault of the defenders, or of those for whom they are responsible. It is the duty of the driver of a car to obey the signals of the conductor with regard to passengers desiring to alight. It is the duty of the conductor of a car to be on the rear platform of said car, or at least to be in such a position on said car when it is approaching a stopping-place that he can see whether there are any passengers who desire to alight. It is also his duty when approaching said stopping-place to keep a careful lookout to see whether there are any passengers on said car who desire to alight at said stopping-place, and to signal the driver to stop when there are such passengers. On the night in question the conductor of said car, as the car approached said stopping-place, was inside the car at the end next the driver making entries in an official book kept in a receptacle at said end of the car. The pursuer and her husband were seated near the rear end of the inside of said car, and when they proceeded from their seats to the rear platform for the purpose of alighting at said stopping-place the conductor was so engrossed in making entries in said book that he negligently, and in breach of duty, failed to observe that the pursuer and her husband had left the inside of said car for the purpose of alighting. He made no attempt to ascertain by personal inspection whether there were any passengers on the rear platform desiring to alight, and gave no signal to the driver to stop at said stopping-place. The driver of said car had slowed down the car and was preparing to bring the car gently to a stop, but when he received no signal to stop he instantly, and with a violent jerk, set the car in motion again, when the pursuer had been led to believe by the slowing down of said car that the said car was about to stop. The pursuer was thus taken unawares, and the accident resulted. The said accident was accordingly caused by the conductor's neglect of dutyin not ascertaining that the pursuer and her husband were standing at the rear platform of the car expecting said car to stop at said stopping-place, and preparing to alight, and in leading the driver to believe after the said driver had slowed down with a view to stopping, that there were no passengers desiring to alight. Alternatively the driver of said car was at fault. On the night in question the driver, as the car approached said stopping-place, released the gripper from the cable and slowed down the car in order to be in a position to bring his car to a stop at said stopping-place in as speedy a manner as possible, as it was the last journey for the night. When the car came close to said...
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