Elliot v Young's Bus Service. Archibald v Young's Bus Service
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1945 |
| Docket Number | No. 50. |
| Date | 19 July 1945 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Keith.
NegligenceContract of carriageTraffic accidentsMotor omnibus running into electric standard through bursting of tyreInjury to passengerLiability of omnibus ownersDuty as carriers to provide for safety of passengersTyre inspectionOnus of proof.
A motor omnibus ran into an electric standard at the side of a street, the accident having been caused by the bursting of the tyre of the near front wheel. A burst occurs where, owing to some defect or weakness, the fabric body of a tyre gives way.
In actions of damages against the owners of the omnibus at the instance of two passengers who had been injured, the evidence showed that the tyre, of which the tread and covering of the walls were of degraded rubber, had, when fitted to the wheel three days before the accident, already run ten thousand miles on a wheel of another omnibus. The part of the tyre where the burst had occurred was missing, but the remainder showed no defects. At the time of fitting, the surface of the tyre was inspected, but no examination was made of the fabric body or of the inner tube, which had not been removed from the cover. No evidence was led by the defenders that any such examination had been made at an earlier date.
Held that the defenders were liable in damages, in respect that they had failed to show that they had taken all reasonable precautions to make sure that the tyre was sound.
Samuel Elliot, Dennistoun, Glasgow, brought an action against Young's Bus Service, Limited, having their registered office in Paisley, for payment of 1500 as damages in respect of injuries sustained by him while travelling as a fare-paying passenger on a motor omnibus belonging to the defenders which, owing to the bursting of the tyre on the near front wheel of the vehicle, had collided with an electric lamp standard and an electric section pillar at the side of Paisley Road West, Glasgow. Another passenger, Miss Margaret M'Villiers Archibald, brought a similar action. Answers were lodged by the defenders, who denied liability.
In Elliot's action the parties averred, inter alia:(Cond. 2) "On or about 16th May 1943 at about 9.50 p.m. the pursuer was travelling as a fare-paying passenger in one of the defenders' motor omnibuses, which was proceeding eastwards along Paisley Road, Glasgow. As the omnibus approached Sandwood Road the front near side tyre suddenly and without warning burst, and the omnibus collided violently with an electric lamp standard and an electric section pillar on the north side of Paisley Road. The pursuer and many other passengers in the omnibus sustained serious injuries as a result of the said collision. Condescendence 3 is referred to." (Ans. 2) "Admitted that on 16th May 1943 at or about 9.50 p.m. one of the defenders' motor omnibuses while proceeding eastwards in Paisley Road West, Glasgow, at or near Sandwood Road collided with an electric lamp standard and an electric fuse box on the north side of Paisley Road, Glasgow. Believed to be true that the pursuer was a passenger on the said omnibus and that he sustained certain injuries as a result of the collision. Quoad ultradenied. Answer 3 is referred to." (Cond. 3) "The accident was entirely caused through the fault of the defenders and their servants the conductress and the driver of the said omnibus who were acting in the course of their employment and for whom the defenders are responsible. It was the duty of the defenders to see to it that the tyres on their omnibus were kept in sound and safe condition, and in furtherance of that duty to cause proper inspections to be made of the tyres at frequent intervals in order to detect whether the tyres (outer covers and inner tubes) were in safe condition and to replace them if necessary by sound covers and tubes. It is believed and averred that the defenders, in breach of their said duty, caused no proper inspection to be made of their omnibus tyres, and in any event that they allowed the said omnibus which was involved in the accident to run on one of their regular omnibus services when the cover of the near side front tyre was not in sound and safe condition. It is believed and averred in particular that before said accident the outer walls of the said cover showed distinct signs of frequent and severe impact with objects such as kerbs and the inner canvas lining was as a result fractured and rough. Such defective condition of the said cover would have been readily observed by proper inspection of it. It is believed and averred that the inner tube of said near side front tyre burst as a result of being punctured through constant friction against the said rough fractured canvas lining thereby causing the omnibus to get beyond the driver's proper control and to collide with the said standard and pillar. [Here there followed averments that the omnibus was carrying more passengers than were permitted by the relevant regulations, and also that it was travelling at an excessive speed.] With reference to the defenders' averments in answer not known and not admitted as to the mileage run by the said tyre prior to the accident and as to it being transferred from one omnibus to another. Esto said tyre was inspected on 13th May, it is believed and averred that no proper inspection was then made.Quoad ultra said averments in answer so far as not coinciding herewith are denied." (Ans. 3) "Admitted that certain duties were incumbent upon the defenders and their servants the driver and conductress of the said omnibus. Explained that they fulfilled all their said duties. Quoad ultra denied. Explained that while the defenders' said omnibus was proceeding at a reasonable rate of speed along Paisley Road West shortly before the collision the tyre of the near front wheel for some reason unknown to the defenders burst and the omnibus was thrown out of control and veered towards the left. The omnibus travelled out of control for some distance, and before the defenders' driver, in spite of all his endeavours, could regain control it came into collision with the electric lamp standard and electric fuse box on the north or near side of the roadway. The defenders in the course of their business maintain a reasonable and proper system of inspection of the tyres on their omnibuses and employ experienced servants in the fitting and maintenance of the tyres on their vehicles and in particular maintained such a system and employed such servants in relation to the vehicle involved in the accident, and the tyres fitted thereon. Prior to the accident the tyre in question was, so far as reasonable and proper inspection could reveal, in good condition. The total mileage run by the tyre prior to the said accident was approximately 10,000 miles. The tyre was supplied to the defenders and fitted on one of their omnibuses, No. 72, by the India Tyre and Rubber Company, Limited, in March 1943. In May 1943 the omnibus No. 72 to which the said tyre was fitted was not in service. The tyres of this omnibus No. 72 and of the omnibus involved in the accident, No. 109, are interchangeable. On 13th May 1943 the tyre of the near front wheel of the omnibus No. 72 was removed therefrom and fitted to the near front wheel of the omnibus involved in the said accident No. 109. On 13th May 1943 the tyre was examined inside and out and found to be in apparently perfect condition. The omnibus involved in the accident was not in full service after the fitting of the said tyre until 15th May 1943 and at the time of the accident had run 553 miles since the tyre was fitted. In addition the tyres of all omnibuses of the defenders in service are inspected and have the tyre pressures checked daily except Sunday. No defect in the said tyre was reported by the employee whose duty it is to carry out such inspection, nor was any defect reported by any driver of the said omnibus or of omnibus No. 72 to which the said tyre had previously been fitted." The pursuer's averments as to excessive number of passengers and excessive speed were denied.
The defenders in Elliot's action pleaded, inter alia:"(3) The said accident not having been caused by the fault or negligence of the defenders, they should be assoilzied from the conclusions of the summons."
On 6th April 1945, after a proof, the import of which appears from the opinions of the Judges infra, the Lord Ordinary (Keith) in Elliot's action decerned against the defenders for payment to the pursuer of the sum of 1500 in full of the conclusions of the summons, with expenses.1
At advising on 19th July 1945,
LORD JUSTICE-CLERK (Cooper).The background of this case is
simple. A public motor omnibus was proceeding along a Glasgow street when the front near tyre suddenly burst with a loud explosion, sufficiently violent to scatter fragments of rubber from the tread and wall of the tyre, with the result that the driver could not prevent the omnibus from colliding with an electric standard and section pillar on the edge of the pavement. On this basis of averred (and now admitted) fact, the pursuer, who was one of the many passengers injured in the accident, tabled on record three specific grounds of fault against the omnibus company, viz.:(a) negligent failure to detect by proper inspection alleged previous damage to the tyre which burst, and to replace this tyre by a sound tyre; (b) allowing the omnibus to be overcrowded in breach of a regulation; and (c) excessive speed. The Lord Ordinary negatived all three grounds of fault, but found in favour of the pursuer primarily upon the view that the defenders had failed to discharge the onus of proof which he held to be incumbent on them, and secondarily upon the well-known dictum of Lord Esher in The Merchant Prince.12 Before us the second and third grounds of fault were not maintained, and the case was presented on the footing that no criticism could be directed against the driving of the omnibus, but...
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