Clelland v Robb
| Jurisdiction | Scotland |
| Judgment Date | 17 December 1910 |
| Date | 17 December 1910 |
| Docket Number | No. 32. |
| Court | Court of Session |
Lord Dewar, Lord President, Lord Kinnear, Lord Johnston, Lord Mackenzie.
ReparationNegligenceKicking horseSufficiency of averments of fault.
In an action by a father for damages for the death of his son, a boy twelve years of age, the pursuer averred that the defender, who was a farmer, occasionally employed the boy at his farm to do small pieces of light work; that one day the defender ordered him to assist in yoking a horse to a threshing-mill; and that, while stooping down behind the horse to attach it to the beam, he was kicked on the head and died. The pursuer further averred that the defender had been guilty of negligence in ordering an inexperienced boy of that age to assist in yoking; that it was an operation under which any horse was apt to be restive; and that the horse in question was, as the defender well knew, ill-tempered and given to kicking.
Held that the averments disclosed a relevant case to go before a jury, and issue allowed.
Held, further, that the general averment of knowledge of the kicking habits of the horse was sufficient without condescending on specific instances.
Observed that negligence per se is not a ground of liability, and can only infer liability where it has caused a breach of duty.
On 29th July 1910 William Clelland, miner, Whitburn, brought an action against Robert Robb, farmer, Whitburn, in which he concluded for 300 as reparation for the death of his son.
The pursuer averred (the words printed in italics being afterwards deleted by leave of the Inner House):(Cond. 2) For some time prior to 19th February 1910 the deceased James Clelland, a son of the pursuer, who at the said date was about eleven years and eleven months old and was still attending school, had been occasionally out of school hours employed by the defender at his said farm to do small pieces of light work. His remuneration consisted of such small sums as the defender chose to give him. (Cond. 3) At the said date the deceased James Clelland was at the said farm at the request of the defender. The defender was about to thresh corn. The threshing-machine at the said farm is driven by horse-power, the horses being yoked to the end of a beam by means of short chains from a swing-bar hanging behind the horses' hips, which chains can be hooked on to the beam. (Cond. 4) The defender ordered the said James Clelland to help in yoking the horses to be used to drive the said mill. The said James Clelland accordingly, under the defender's directions, brought out one of the said horses, while the defender brought out another. When the said horses had been brought to the said mill the defender ordered, or in any event permitted, the deceased James Clelland to yoke one of the said horses, which was a black horse, to the beam. The defender did not in any way warn the said James Clelland against attempting to yoke the said horse to the beam. It was necessary for the deceased James Clelland in order to do this to stoop down close behind the horse and between the horse and the beam. Just as he was fastening the said chains to the beam the horse kicked him in the forehead, rendered him unconscious, and caused injuries of which...
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