Keogh v Magistrates of Edinburgh
| Jurisdiction | Scotland |
| Judgment Date | 05 June 1926 |
| Date | 05 June 1926 |
| Docket Number | No. 82. |
| Court | Court of Session |
Lord President (Clyde), Lord Sands, Lord Blackburn, Lord Ashmore.
NegligenceRoads and StreetsLiability of road authoritiesStatutory obligation to light streetsWhether absolute statutory duty to keep lamps alightEdinburgh Municipal and Police Act, 1879 (42 and 43 Vict. cap. cxxxii.), secs. 32 and 43.
The Edinburgh Municipal and Police Act, 1879, by sec. 32, imposes on the Magistrates and Council the duty of lighting the streets; and by sec. 43 directs that the inspector of lighting shall see that all the lamps are lighted and kept lighted for the due times.
A motor car, which was being driven westwards along Princes Street, Edinburgh, at 10.15 p.m. on an April night, came into collision with a tramway island, and was damaged. In an action at the instance of the owner of the car against the Corporation, as the local authority charged, under the Edinburgh Municipal and Police Act, 1879, with the lighting of the streets, it was proved that a red lamp situated on the island was not lit at the time of the accident. It was also established that the defenders had not failed in their duty with respect either to the construction and condition of the lamp, or to the precautions taken to ensure that it should remain alight during the hours of darkness. The pursuer maintained that the Act imposed an absolute duty on the defenders to keep the lamp burning, and that their failure to do so rendered them liable to him in damages.
Held that, in a matter of administration such as the lighting of lamps, the standard of performance could not be absolute, but must be relative to the best available means of achieving exact performance; and that, in the absence of evidence of any failure on the part of the defenders to take every reasonable means of carrying out their statutory obligations, they fell to be assoilzied.
On 25th May 1925 Martin Keogh, 85 Comely Bank Road, Edinburgh, brought an action in the Sheriff Court at Edinburgh against the Lord Provost, Magistrates, and Council of the City of Edinburgh, as the local authority charged with the lighting of the streets,* concluding for a sum of 200 as damages caused to his motor car in a collision with a tramway island in Princes Street. He alleged that the accident took place at 10.20 p.m. on a dark April night, and that a red lamp which was situated on the island was not lighted at the time. He pleaded, inter alia;(1) The
pursuer having sustained the loss and damage condescended on through (a) the fault and negligence of the defenders, and (b)) the defenders' breach of statutory duty, he is entitled to reparation therefor as craved.
A proof was allowed and led, and on 26th January 1926 the Sheriff-substitute (Neish) pronounced the following interlocutor:Finds in fact (1) that about 10.15 p.m. on Sunday, 26th April 1925, the pursuer was driving his motor car westwards from the General Post Office along Princes Street; (2) that the motor car collided with a refuge in Princes Street on the south side of the tramway rails opposite Castle Street, and was damaged; (3) that there is a lamp-post on said refuge, which is lit by three incandescent gas burners in an oblong glass box with red glass at each end, to warn approaching traffic from east and west, and two pendent glass globes; (4) that the incandescent gas burners were alight at 9.45 p.m. on the night of the accident; (5) that the incandescent gas burners were not alight when the pursuer's motor car collided with the refuge about 10.15 p.m.; (6) that the night was wet and hazy; (7) that the incandescent gas burners are regularly inspected by the Corporation lamplighter when he turns up the peep light which lights the burners, and when he turns off the light in the morning; (8) that the burners were in good order when they were lit by the lamplighter about 8.40 p.m. on the night of the accident; (9) that it is the duty of policemen on patrol to observe the lamp and to report at once any defect to the gas department, and that this duty is carried out; (10) that the pursuer has not proved his averments in condescendence 5 to the effect that the defenders failed in their duty of inspection, and that the lamp in question was in a faulty condition and likely to go out; (11) that the lamp is specially constructed to resist wind, and that the lights in such lamps have never been known to be blown out in Edinburgh; (12) that the gas supply was in good order; (13) that immediately to the north of the centre of the refuge and about 10 feet from it there is a standard tramway pole with two hanging electric lights, each of 600 watts; (14) that it is not proved that said electric lamps give sufficient warning of the existence of the refuge to motor traffic coming from the east when the lamp on the island is not lit; (15) that the pursuer in coming from the General Post Office had passed, in safety, seven similar refuges on which the incandescent lamps were alight: Finds in law that by section 32 of the Edinburgh Municipal and Police Act, 1879, the defenders were under a statutory duty to light the lamp on the refuge: Finds in fact and in law (1) that the accident to the pursuer's motor car was caused by the failure of the defenders to carry out their statutory duty of lighting the lamp on the refuge; and (2) that the accident was not caused or materially contributed to by fault on the part of the pursuer: Finds, further, in law that the defenders are liable to the pursuer in damages, and assesses the same at 76, 10s. 4d. Therefore grants decree against the defenders for payment to the pursuer of the sum of 76, 10s. 4d. sterling, with interest as craved.
Against this interlocutor the defenders appealed to the First Division of the Court of Session, but neither side challenged the accuracy of the Sheriff-substitute's findings of fact. The case was heard on 20th May 1926. Argued for the appellants;The Sheriff-substitute had reached a wrong conclusion in law. It was unlikely that an absolute duty would be imposed on a public body except in the clearest language, and there was no such clear language in the section relied on by the pursuer.1 In order to render the Corporation liable because of the failure of one of their lamps there must be proof of some defect in the system of lighting or in the particular lamp. The only duty which rested on the Corporation was one of taking reasonable precautions to see that the lamps were lit.2 Section 32 of the Act of 1879 3 was an empowering section and enacted a general duty to light, but not an absolute duty to see that each lamp remained lit. Section 43 imposed no extra duties upon the Corporation. It was one of a group of sections which distributed duties amongst various officials. The Corporation were given power to erect islands in the streets by the Edinburgh Corporation Act...
To continue reading
Request your trial
-
Marshall & Son v Russain Oil Products Ltd
...upon him by the Road Traffic Act, 1930, or any other Act." 3 1923 S. C. (H. L.) 43, at p. 53. 4 Keogh v. Magistrates of Edinburgh, 1926 S. C. 814, Lord President Clyde at p. 5 Ritchie v. Western Scottish Motor Traction Co.UNK,1935, S. L. T. 13, Lord Mackay at p. 14. 6 The Merchant Prince, [......
-
Michael Macdonald Against Comhairle Nan Eilean Siar
...or its predecessor. Similar statutory provisions had not resulted in a common law duty of care. He referred to Keogh v City of Edinburgh 1926 SC 814. In that case a motor car being driven along Princes Street in Edinburgh collided with a tramway island and was damaged. A red lamp on the isl......
-
Cameron v Inverness-shire County Council
...at p. 488;Municipal Council of Sydney v. BourkeELR, [1895] A. C. 433, Lord Herschell, L.C., at p. 439; Keogh v. Magistrates of Edinburgh, 1926 S. C. 814, Lord President Clyde at p. 4 Guardians of Amesbury v. Justices of WiltshireELR,(1883) 10 Q. B. D. 480. 5 Gray v. St Andrews and Cupar Dis......
-
Stevenson v Magistrates of Edinburgh
...Trustees v. InnesUNK, (1886) 14 R. 48. 4 Melville v. Renfrewshire County Council, 1920 S. C. 61. 5 Keogh v. Magistrates of Edinburgh, 1926 S. C. 814, Lord President Clyde at p. 6 Edinburgh Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926 (16 and 17 Geo. V. cap. lxv.),......