Gunn v McAdam & Son
| Jurisdiction | Scotland |
| Judgment Date | 10 November 1948 |
| Docket Number | No. 5. |
| Date | 10 November 1948 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Mackintosh.
NegligenceSpecificationSufficiency of averments in relation to case established in evidenceOnus of proofRes ipsa loquiturProcess.
A railway employee, while travelling in a power-driven trolley on a single line of railway which was being dismantled by contractors, lost his life as a result of a collision between the trolley and a trailer-bogie travelling in the opposite direction. In an action of damages, brought by his widow and children against,inter alios, the contractors, it was proved that the method of dismantling was as follows. A steam crane on the railway lifted the rails and sleepers when detached on to a trailer-bogie, the wheels of which were scotched and the hand brake on. When loading was completed the scotches were removed and the brake released and the bogie pushed back by the crane a sufficient distance to enable the next section of the line to be dealt with similarly. When however, as on the day of the accident, work was being carried on where the railway was on an incline, it was the practice, when a bogie was being pushed back, to leave the brake full on. On the day in question, the scotches having been removed from the wheels of a bogie which had been fully loaded and was about to be pushed back, the bogie began to move and ran away in spite of all efforts to stop it. If the brake had been fully on, the bogie would not have moved. The pursuers had averred that the defenders were in fault in respect that the bogie should have been secured either by hand brake and wedges or by attachment to the crane. The Lord Ordinary, commenting on the absence of an averment that there should have been a man attending to the brake, assoilzied the defenders on the ground that neither of the specific faults averred had been proved, it being impossible for the wheels to be scotched when the bogie was about to be pushed back, and attachment to the crane being unheard of and, in the circumstances, impossible owing to the absence of the necessary fittings.
Held (rev. judgment of Lord Mackintosh) that the pursuers had relevantly averred a case of prima facie fault on the part of the contractors which gave them ample notice of the case made against them; that the proved circumstances were such as to transfer to the contractors the onus of showing that they had used due diligence; that they had failed to discharge this onus; and that the pursuers were entitled to damages.
"Vitruvia" S.S. Co. v. Ropner Shipping Co., 1924 S. C. (H. L.) 31, and Black v. John Williams & Co. (Wishaw), 1924 S. C. (H. L.) 22,distinguished.
Mrs Euphemia Christie Or Gunn And Others, as widow and children of Donald Gunn, brought an action of damages in respect of his death against (1) John M'Adam & Son, Limited, and (2) the London, Midland and Scottish Railway Companythe latter being called as additional defenders in consequence of averments made by the first defenders.
The pursuers averred, inter alia:(Cond. 2) "On or about 14th December 1944 at or about 5.20 p.m. the deceased, who was employed by the second-named defenders, was travelling on a power-driven trolley southwards from Wick along the single track of the Wick and Lybster Light Railway. His destination was a point on the line at which the first-named defenders' employees were engaged in dismantling the line, loading rails and sleepers on to bogies which were then hauled towards Wick by the said trolley. At a point about 300 yards south of the Janetstown level crossing on the said line the trolley on which the deceased was travelling was run into by two runaway bogies from the said operations. As a result of the collision the deceased sustained fatal injuries. It was growing dark at the time of the collision and the bogies were without lights. They were heavily laden with steel rails and sleepers at the time of impact. " (Cond. 3) "The said accident was caused by the fault and negligence of the first-named defenders' servants for whose actings the defenders are responsible. It was their duty to secure the said bogies by hand brake and by wheel wedges or by attaching them to the mobile crane which was in use at the place of operations, until they were ready to be taken away by the said trolley. These duties were particularly incumbent upon the first-named defenders' servants because the part of the...
To continue reading
Request your trial
-
Morrison's Associated Companies Ltd v James Rome & Sons Ltd
...not entitled to find in their favour on general grounds for which they had no record; and the defenders assoilzied. Gunn v. M'Adam & Son, 1949 S.C. 31,distinguished. Hook v. Brown and Others, 1963 S.L.T. (Notes) 52,approved. Morrison's Associated Companies Limited brought an action against ......
-
Note In The Cause David Rule Against Hazelhaw Properties Limited And Scottish Power Uk Plc
...consider whether the purported lack of specification concerns a matter within the knowledge of the complaining party (Gunn v McAdam & Sons 1949 SC 31). [26] As observed by Lord Guest in McMenemy v James Dougal & Sons Ltd 1960 SLT (Notes) 84, “the record should not be subjected to the carefu......
-
Kelly Elizabeth Morton (ap) V. West Lothian Council
...Midland and Scottish Railway Company 1941 SC 551; Elliott v. Young's Bus Service Limited 1945 SC 445; and Gunn v. John M'Adam & Son Ltd. 1949 SC 31. Once the presumption was raised against the defenders, in a situation where they have the knowledge and control of the circumstances, there wa......
-
Marjory Campbell V. Borders Health Board
...consistent with a safe system. There was such a significant delay that the onus of proof shifted to the defenders - Gunn v McAdam and Son 1949 SC 31, per Lord President Cooper at 38/40. [106] Even if, contrary to the above submission, the onus of proof had not shifted in this case, the purs......