Eisten v North British Railway Company [Court of Session—1st Division.]
| Jurisdiction | Scotland |
| Judgment Date | 13 July 1870 |
| Date | 13 July 1870 |
| Docket Number | No. 194 |
| Court | Court of Session (Inner House - First Division) |
Ld. Ormidale. B.
Reparation—Contract—Title to Sue—Actio injuriarum.—
Reparation—Assythment—Crime.—
On 9th May 1869 John Eisten, while travelling from Glasgow to London, was severely injured in a railway accident near Thirsk Junction. He died, in consequence of the injuries, on the following day.
His two sisters, the pursuers, raised this action against the defenders, by whose line the deceased had travelled from Glasgow, concluding for payment of £2000 as reparation for the loss sustained by them through the death of their brother.
The pursuers alleged,—(Cond. 1) ‘The defenders hold themselves out as carriers of passengers and goods between Glasgow and London; and by selling the said ticket to the said John Eisten, undertook to convey him, with due expedition and safety, by said train from Glasgow to London, both over their own lines, and over, inter alia, the line of the North-Eastern Railway Company.’ (Cond. 2) ‘The train in which the said John Eisten was travelling reached Thirsk Junction, on the North-Eastern Railway, in safety. On reaching a point on the line ninety or one hundred yards to the south of the platform at Thirsk station, where a siding branches off, the train was diverted from the main line into the siding, and came into violent collision with a goods train, which had been shunted into the siding some time previously.’ (Cond. 4) ‘The said collision and consequent death of the said John Eisten were caused through the fault of the defenders, or those for whom they are responsible.’ (Cond. 5) ‘The pointsman in charge of the said siding, who was named William Warriner, was in the service of the North-Eastern Railway Company. On the present occasion the pointsman had, a short time before the train in which the deceased was travelling came up, shunted a goods train into the siding, and, in doing so, had opened the points and fixed the lever in the catch. It is not known whether he at this time displayed the danger signal at all; but if he did so, he lowered it without taking the lever out of the catch, and restoring the points to their proper position; and through this culpable neglect on his part the points were open to the siding when the express train came up, and thus the collision took place.’ (Cond. 6) ‘While the immediate cause of the collision was the above-mentioned neglect of the pointsman, the defenders, or the North-Eastern Railway Company, for whom they are responsible, were guilty of culpable neglect in not having provided a suitable apparatus, which would have rendered a collision like the present impossible.’
The pursuers further alleged, that since the death of their father, six years before, they had been entirely supported by their brother, who, after their father's death, undertook to support them; that they were possessed of no means, and were unable to earn a living for themselves; that by the death of their brother they had been deprived of their only support, and that, in addition to their loss of the means of subsistence, they had, by the death of their brother, been deeply injured in their feelings.
The pursuers pleaded;—(2) The said John Eisten having been killed through the fault of the defenders, or those for whom they are responsible, his sisters, the pursuers, who were entirely supported by him, and were dependent on him for their future support and maintenance, are entitled to reparation as concluded for, for the loss, injury, and damage sustained by them.
The defenders pleaded;—(1) The pursuers have not set forth and do not possess any title to insist in the present action. They have no right to claim either damages or solatium on account of their brother's death.
The Lord Ordinary, on 15th. March 1870, pronounced this interlocutor:—‘Having heard counsel for the parties on the defenders' first plea in law, and considered the argument and proceedings, sustains said plea, and, in respect thereof, dismisses the action, and decerns: Finds the defenders entitled to expenses; allows an account,’ &c.∗
The pursuers reclaimed, and argued;—By the old law of assythment collateral relations had an undoubted title to sue, and under the modern law of reparation, which arose out of the old law of assythment, the title of collaterals was also clear, at least where the two elements were found of relationship to the deceased, and dependence on him for support. The case of Greenhorn did not apply, for that case was based merely on wounded feelings, and the pursuers there did not allege dependence on the deceased.1 The law of England and America gave a claim of damages to the widow and next of kin of the deceased.2
Argued for respondents;—The law of assythment had no application in the present case, which was simply one of breach of contract, and in which there was no crime or personal fault on the part of the defenders. There was no legal obligation against the deceased to support the pursuers, and therefore they could not claim damages for his death.3
At advising,—
In an action brought by two sisters against a railway company for damages sustained by the pursuers through the death of their brother, the pursuers averred that the defenders had contracted with the...
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Hamilton v Fife Health Board
...of the sustaining of his injuries? Reference was made to the opinions of the judges in Eisten v. North British Railway Co.UNK (1870) 8 Macph. 980 where it was made plain that a derivative claim, one deriving from the death of a relative, could be sustained in limited circumstances only, but......
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...of the deceased, and not, as under tthe statutory law of England, to dependants. (See Eisten v. North British Railway Company (1870) 8 Macph. 980.) 6 It is perhaps for this reason that the action has been described as "anomalous", and it is certainly clear in my opinion that extension of th......
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Reavis v Clan Line Steamers Ltd (No.2)
...Allan v. Barclay is confirmed by subsequent cases with regard to claims for the death of relativesEisten v. North British Railway Co.UNK, 8 Macph. 980; Clarke v. Carfin Coal Co., 18 R. (H. L.) 63; Darling v. Gray & Sons, 19 R. (H. L.) 31. The effect of these cases is not only to limit such ......
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Robertson v Turnbull
...appeal satisfies me that my own approach was based squarely upon the line of Scottish cases dating effectively from Eisten's case (1870) 8 Macph. 980, and was confined to a consideration of the correctness or otherwise of Darling v. Gray & Sons (1892) 19 R. (H.L.) 31, [1892] A.C. 576. It wa......