Connachan v Scottish Motor Traction Company
| Jurisdiction | Scotland |
| Judgment Date | 26 June 1946 |
| Date | 26 June 1946 |
| Docket Number | No. 44. |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Mackintosh.
NegligenceContributory negligenceTraffic accidentMiner cyclist killed by motor omnibusNo lights on bicycle but miner's lamp in cap litEffect of substitute lighting.
Master and ServantPower of servant to bind masterAdmission inferring negligence.
A miner, riding his bicycle along a public road during the hours of darkness without the white front light and the red rear light prescribed by the regulations then in force, was struck and fatally injured by a motor omnibus which overtook him as it was passing another motor omnibus travelling in the opposite direction. In an action of damages at the instance of the widow against the owners of the overtaking omnibus the Lord Ordinary (Mackintosh) found the defenders liable in damages on the ground that the accident was wholly due to the fault of their driver who ought to have noticed the cyclist as, on evidence accepted by the Lord Ordinary, he was wearing in his cap a lighted miner's lamp sufficient to disclose his position. There was evidence as to a test with a similar lamp, made however in different conditions, where a glow on the road immediately in front of the bicycle was seen from behind at a distance of fifty yards. The driver of the omnibus stated in evidence that, if the cyclist had been carrying such a lamp (which he denied), he would have seen the glow on the road in time to avoid the accident.
Held (rev. judgment of the Lord Ordinary) (1) that the onus was on the pursuer to prove that the substitute lighting was in use, and that it formed a reasonably adequate warning to other road users; (2) that, whether or not the use of the substitute lighting had been proved, the pursuer had failed to prove that it was, in the circumstances, an adequate warning to overtaking vehicles; and (3) that the cyclist had been guilty of negligence at least contributing to, if not the sole effective cause of, the accident.
Observed, per the Lord Justice-Clerk, that the statement of the driver that he would have seen the light thrown on the road by a miner's lamp did not amount to an admission of fact or of fault which would bind his employers.
Mrs Isabella Blackie Fraser Or Montgomery Or Connachan brought an action in the Court of Session, as an individual and as tutrix and administratrix-in-law of her pupil child Daniel John Connachan, against the Scottish Motor Traction Company, Limited, for damages in respect of the death of her husband, John Connachan.
Proof was led before the Lord Ordinary (Mackintosh).
On 15th March 1946 the Lord Ordinary found the defenders liable to the pursuer in damages, which he assessed at 1500 to her as an individual and 450 to her as tutrix and administratrix-in-law of her pupil child.
The evidence, which is referred to more fully in the opinion of the Lord Ordinary, established that about 6.50 a.m. on 15th November 1944 the pursuer's husband was bicycling along a public road and was overtaken and fatally injured by a motor omnibus when the omnibus was passing another motor omnibus travelling in the opposite direction. The night was dark, the road was slippery, and the overtaking omnibus was going at its normal speed. The headlights of the omnibuses were screened, as required by the regulations in force, and each omnibus switched off its offside headlight as they prepared to pass. The bicycle carried neither the white front light nor the rear red light required by the current regulations. According however to evidence for the pursuer, contradicted by the defenders but accepted by the Lord Ordinary, the bicyclist, who was a miner, had affixed to his cap a lighted miner's carbide lamp. Evidence was led as to an experiment which had been made in moonlight which showed that such a lamp so carried threw a glow on the ground in front and under the bicycle which could be seen from behind for a distance of fifty yards. The Lord Ordinary was also of opinion that an attempt by the pursuer to prove that he had a rear red reflector on his bicycle had failed.
LORD JUSTICE-CLERK (Cooper).The pursuer's husband, while cycling in the "black-out" in November 1944 at an early hour in the morning with no lights on his cycle of any kind, was run into from behind and killed by a motor omnibus which at the time was passing another motor omnibus travelling in the opposite direction. The Lord Ordinary has held that the deceased was in breach of the Lighting (Restrictions) Order, 1944,1 in respect that he was not carrying on his cycle the rear light then prescribed. His Lordship has held moreover that the deceased did not even have a red reflector attached to his cycle, that being the warning device in use prior to the introduction in 1940 of the requirement of a rear light. But he has exonerated the deceased from all blame causing or even contributing to the accident because he held it proved that the deceased was carrying in his hat a miner's lamp which was lit and shining forwards, and because he took the view that the omnibus driver's admitted failure to see the glow or reflection (if any) of this miner's lamp or other trace of the deceased's presence on the road implicated him either in failure to keep a proper look-out, or in driving at an excessive speed, or in both. It seems to me that, when a person comes into Court in a case of this kind admitting, or being convicted of, cycling on a public road in the "black-out" without the prescribed lights, and alleging that substitute expedients were adopted in place of the regulation lights, there is a considerable onus on that person to satisfy the Court (first) that the substitute expedients were in fact in use, and (second) that they were reasonably adequate substitutes sufficient to convict another road user of fault in failing to detect and act upon them, and therefore of sole responsibility for a resulting accident.
Now, the Lord Ordinary, as I observed a moment ago, has held it not proved on the evidence that the deceased had a red reflector attached to his cycle at the time, and in that respect I respectfully agree with the Lord Ordinary. It is needless to detail the evidence on which his Lordship has commented, and I shall only say that the factor which specially impressed my mind on this point is this. On the only theory advanced by the pursuer the reflector, attached to the mudguard of the bicycle by a clip and two bolts or rivets, must have been broken off by the impact of the motor omnibus when the collision occurred. But it is plain (first) that no trace of that reflector, or of the broken glass of which it had been composed, could be discovered at or near the scene of the accident, notwithstanding careful search, and (second) that it is quite impossible to understand how a blow from a motor omnibus could be sufficient to shear two substantial steel bolts or rivets and could at the same time leave unmarked and undamaged the lightly constructed mudguard to which these rivets were attached, and the improvised wire attachment by which that mudguard was supported. Accordingly, with the Lord Ordinary, I cannot hold that there was any red reflector on the bicycle.
As regards the miner's lamp attached to the hat which the deceased was wearing, the evidence rests upon (a) the testimony of the pursuer herself, who says that the lamp was lit when the deceased left his home a few minutes before the accident, and (b) on the testimony of a man MacArthur, who shortly before the accident saw a light which may or may not have been the light of that miner's lamp. No one says that it was lit just before the accident occurred. There is in addition a volume of general evidence as to the practice of miners who carry such miner's lamps in their hats when cycling. I have grave doubt whether the evidence is adequate to establish that this light was in fact lit at the time when the accident occurred, but it is probably unnecessary to examine that...
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