Dunlop v Maxton

Judgment Date01 November 1898
Date01 November 1898
Docket NumberNo. 7.
CourtCourt of Session
Court of Session
2d Division

Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.

No. 7.

ReparationNegligenceRoadDangerous condition of pavement of public streetLiability to public of proprietor of solum of pavement where dangerous condition due to exercise of statutory powers by a railway companyGlasgow Central Railway Act, 1888 (51 and 52 Vict cap. exciv.) secs. 39 and 41.

The Glasgow Central Railway Act, 1888, authorised the Caledonian Railway Company to construct an underground railway through Glasgow. Section 39 empowered the railway company to break open any street or footpath shewn on the deposited plans. Section 41 enacted that the company should, to the satisfaction of the corporation of Glasgow, restore the roads and pavements interfered with by them to the original level, and cause them to be maintained till properly consolidated.

In consequence of operations by the railway company in the exercise of their powers under the Act, irregularities were caused in the surface of the pavement of a street, which thus became dangerous to foot-passengers. The street was a public street, but the solum of the pavement and of the carriageway ad medium filum belonged to the proprietor of the adjoining houses. The operations of the company at this place were completed in 1893. In 1895 a woman was injured owing to the dangerous condition of the pavement, which had not been remedied. She brought an action for damages against the proprietor of the adjoining house as owner of the solum of the pavement, who pleaded that under the railway Act the railway company were alone responsible for the dangerous condition of the pavement. From a proof it appeared that the defender had frequently written to the railway company calling on them to restore the pavement, and had obtained from them an undertaking to restore it; and further that the corporation had called on the company to restore the pavement, but had taken no steps to enforce this demand, with which the company declined to comply.

The Court assoilzied the defender, holding that the defender's obligation to keep the pavement in a safe condition was suspended from the time when the operations of the railway company were commenced until the company had fulfilled their statutory duty of restoring the pavement to a proper condition, and that no fault on the part of the defender had been proved.

Baillie v. Shearer's Judicial FactorSC, 21 R. 498, distinguished.

In the autumn of 1891 the Caledonian Railway Company, acting under the powers conferred by the Glasgow Central Railway Act, 1888,* began underground operations in Great Western Road, Glasgow, which had the effect of causing irregularities in the surface of the pavement in front of the shop No. 721 Great Western Road, belonging to Mr John Maxton, and occupied by Messrs Chrystal, Bell, & Company, and thus making the pavement at this point unsafe for foot-passengers. The Great Western Road was a public street vested under the Glasgow Police Acts in the Corporation of Glasgow, but the property of the solum of the pavement in front of No. 721, and of the carriageway ad medium filum, belonged to Mr Maxton, who owned the line of houses, Nos. 711 to 729 Great Western Road.

On 2d August 1895 Mrs Hellen Dunlop, while walking along the pavement in front of No. 721 Great Western Road, fell and injured herself in consequence of the irregularities in the pavement caused by the railway company's operations.

She brought an action in the Sheriff Court at Glasgow against Mr Maxton for 250 as damages.

The pursuer averred,(Cond. 5) The said accident to the pursuer was due to the fault of the defender in not fulfilling the obligations incumbent on him as the proprietor of the said tenement and

pavement. The said pavement ought to have been relaid or otherwise repaired and made of uniform level.

The defender in his statement of facts founded on the railway company's Act, and averred, inter alia,(Stat. 1) Any alteration of the levels of the stones forming the pavement was occasioned by said operations [of the railway company], over which the defender had no control. The defender repeatedly called on the railway company to restore the pavements so interfered with by them, but his calls were disregarded, as the company contended that their only obligation in connection with said pavements was an obligation to the corporation of Glasgow, with which the defender had no right to interfere.

The pursuer pleaded;(1) The pursuer having suffered injury and damage by the fault of the defender as stated, she is entitled to decree as concluded for.(2) The defence stated is irrelevant.

The defender pleaded, inter alia;(1) The pavement in front of the tenement 721 Great Western Road, Glasgow, occupied by Chrystal, Bell, & Company, and others, having been interfered with by the Caledonian Railway Company in the construction of the railway from the Dalmarnock branch of the Caledonian Railway to Maryhill, under the provisions of the Glasgow Central Railway Act, 1888, and that company having undertaken by the said Act an obligation to restore the said pavement so interfered with by their works, or by subsidences caused thereby, to its original level, and wherever necessary to cause the said pavement to be repaved, and any defects in the pavement in front of said tenement at the date of the accident to the pursuer having been occasioned by the operations of the said company, the defender has no responsibility for the said defects, and the said Caledonian Railway Company are solely responsible therefor.

A proof was allowed. From the evidence the following facts appeared:By letters, commencing in 1892 and continuing after the completion (in 1893) of the railway company's operations at the point in question, the defender repeatedly, but without success, called on the company to restore the pavement. By minute of reference, dated 28th and 31st January 1895, the question of compensation for injury to the defender's properties, caused by the company's operations, was referred to Mr Copland, C.E., Glasgow, as sole arbiter. The defender proposed to insert in the minute of reference a clause giving the arbiter power to deal with the damage done to the pavement, but such a clause was not inserted in consequence of the objections of the company, who informed the defender that he was not liable to restore the pavement, if it had been injured by their operations, because, by the terms of their Act, the question as to the restoration of the pavement was a question between them and the corporation of Glasgow. On 8th July 1895, after proof had been led in the reference, an agreement was entered into between the defender and the company for the settlement of the reference. Under this agreement the company agreed to restore the pavement to the satisfaction of the Master of Works of Glasgow, and failing agreement with him, to the satisfaction of Mr Copland.

Meanwhile, on 28th November 1893, the Master of Works had served a notice on the defender, under the Glasgow Police Act, 1866, requiring him to repair and level up the pavement in front of his property in Great Western Road. A correspondence followed between the defender and the Master of Works, in which the defender explained his position, and ultimately, on 16th January 1895, the Master of Works wrote to the defender, stating that he was of opinion that the railway company took the place of the proprietor, and was responsible and intimating that he therefore withdrew the notice. There-after the Master of Works called on the railway company to restore the pavement, but the company refused...

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