Livingstone v Strachan, Crerar, & Jones
| Jurisdiction | Scotland |
| Judgment Date | 23 June 1923 |
| Date | 23 June 1923 |
| Docket Number | No. 88. |
| Court | Court of Session |
Lord Murray, Lord Justice-Clerk (Alness), Lord Ormidale, Lord Hunter, Lord Anderson.
EvidenceAdmissibilityWitnessCredibilityEvidence of different statement made on previous occasionHearsayStatement made on precognitionStatement by servant of defendersDiscrediting witness not yet examinedEvidence (Scotland) Act, 1852 (15 and 16 Vict. cap. 27), sec. 3.
ProcessJury trialBill of exceptionsAdmission of incompetent evidenceMaterialityCourt of Session Act, 1850 (13 and 14 Vict. cap. 36), sec. 45.
At the trial before a jury of an action brought against the owners of a motor van to recover damages for personal injuries sustained through the alleged fault of their driver, the pursuer's first witness, a surveyor, after deponing to a plan which he had prepared, stated that, when visiting the locus a few days before the trial, he had had a conversation with the driver, who was subsequently called as a witness for the defenders. The surveyor was asked What did he [the driver] say to you about the accident? The question was objected to, and the objection was repelled by the presiding Judge, on the ground that the statement had been made by the driver as a representative of the defenders. The defenders excepted.
Held (diss. Lord Murray) (1) that the evidence should not have been admitted, in respect that the position of the driver was that of an ordinary witness, and that, under sec. 3 of the Evidence (Scotland) Act, 1852, it was incompetent to discredit by anticipation a witness who had not yet been examined; and (2) that the pursuer had not discharged the onus imposed by sec. 45 of the Court of Session Act, 1850, of showing that the exclusion of the evidence in question could not have led to a different verdict from that actually pronounced; and new trial allowed.
ProcessJury trialBill of exceptionsNew trialSurpriseEvidence in support of a case different from that averred on record.
At the trial before a jury of an action against the owners of a motor van to recover damages for personal injuries, the defenders objected to the admission of certain evidence given by the pursuer regarding his movements immediately preceding the accident, upon the ground that the case thus made in evidence by the pursuer himself was totally different from that averred on record. The presiding Judge having repelled the objection and allowed the evidence,
Circumstances in which the Court (diss. the Lord Justice-Clerk and Lord Ormidale) held that the pursuer's averments, though incomplete, gave the defenders sufficient notice of the case eventually made; and bill of exceptions against the presiding Judge's ruling disallowed.
On 9th January 1922 Duncan Livingstone, baker, Glasgow, brought an action in the Sheriff Court at Glasgow against Strachan, Crerar, & Jones, 62 Miller Street, Glasgow, concluding for 750 as damages for personal injuries sustained by him through being run down by a motor van belonging to the defenders and driven by Alexander Wright, a servant of the defenders.
The parties averred, inter alia:(Cond. 2) On or about 17th October 1921 the pursuer left his employment at Riverside Mill Company, Glasgow, at the usual hour, 5 p.m., and came along Springfield Lane, Glasgow, and reached Paisley Road, Glasgow, at 5.5 p.m. He stood there almost opposite Crookston Street, Glasgow, waited to see that the way was clear for him to pass from the north to the south side of Paisley Road in order to get to the tramcar coming from Glasgow, and going in the direction of Ibrox, to convey him to his home. Defenders' counter-statements are denied. (Ans. 2) Denied that the pursuer waited to see that the roadway was clear. Quoad ultra not known and not admitted. (Cond. 3) The point at which pursuer was standing for his tramcar was opposite the car stopping-place at said Crookston Street for cars going towards Ibrox, and, on a car arriving at the stopping-place and being brought to a stop by the conductor, the pursuer after looking round carefully to see that no vehicles were coming in the direction to interfere with his passage before he walked across the street started from the pavement and had almost reached the nearest car rail when he was knocked down by a motor car belonging to and driven by defenders' driver as aftermentioned. Defenders' statements in answer are denied. (Ans. 3) Denied, under reference to answer 4, that pursuer looked to see if the street was clear of traffic before he left the pavement on the north side of Paisley Road and that he had nearly reached the tramcar rails when he was knocked down. Quoad ultra not known and notadmitted. (Cond. 4) Just as the pursuer had begun to walk across the street a motor car, No. GA 9667, belonging to defenders and driven by Alexander Wright, 18 Nelson Square, Barlinnie, servant of the defenders, in the course of the defenders' business, came along the Paisley Road going towards Glasgow, and without giving due notice of its approach or a proper look-out being kept by defenders' servant collided with the pursuer, the force of the impact dragging him a distance of ten yards. Defenders' statements in answer are denied. (Ans. 4) Denied. Explained and averred that as defenders' motor car was being driven eastwards along Paisley Road, Glasgow, and just after it had passed Springfield Lane, the pursuer suddenly and without warning stepped off the north pavement right in front of defenders' car, with which he came in contact and fell on the street. Defenders' car was being driven at a very slow pace on its near side of the street between the tramcar rails and the pavement. Defenders' driver was keeping a careful look-out, but he had no chance, owing to the pursuer leaving the pavement so suddenly, of preventing his car coming against the pursuer. Defenders' driver, however, had his car under such control that he was able to pull it up instantaneously and before it had reached the pursuer as he lay on the street in front of the car. [Then followed, in Cond. 6, averments as to the nature of the injuries the pursuer had sustained.] (Cond. 7) The said injuries to the pursuer were caused by the fault and negligence of defenders or their servant for whom they are responsible in not giving due warning of his approach or sounding his horn, as was his duty to do, or keeping a proper or careful or any look-out. Had the defenders' said driver driven said car carefully and been looking ahead as was his duty to do, he would have seen the pursuer crossing the roadway in front of his car and he could easily have drawn up or avoided contact with and consequent injuries to the pursuer. Defenders' counter-statements are denied. (Ans. 7) Denied under reference to answer 4. Believed and averred that the pursuer's injuries were caused by his own fault and negligence. Had the pursuer taken the usual and necessary precaution of looking to see if there was any traffic approaching from the west before he left the pavement and attempted to cross the street, the accident would not have occurred. Pursuer, however, did not take any such precaution, but stepped off the pavement right in front of defenders' car which was then almost upon him, and so suddenly that defenders' driver could do nothing to prevent an accident.
On 6th March 1922 the Sheriff-substitute allowed a proof, and thereupon the pursuer required the cause to be remitted to the Second Division of the Court of Session for jury trial. Thereafter an issue in ordinary form was approved, and the case was tried on 21st and 22nd November 1922 before Lord Murray and a jury, when a verdict was returned for the pursuer, and damages were assessed at 250.
The defenders, who had excepted to certain rulings of the presiding Judge, brought a bill of exceptions, and also moved for a new trial on the ground that the verdict was contrary to the weight of evidence.
The bill of exceptions set forth, inter alia:
Counsel for the pursuer adduced as his first witness Robert Craig Boyce, civil engineer, 144 St Vincent Street, Glasgow, who had prepared a plan, and who gave evidence with regard to the locus of the accident. The witness thereafter deponed that on 16th November 1922 (being about thirteen months after the occurrence of the accident) he had met at the locus the driver of the defenders' car which was concerned in the accident. The witness was then asked by counsel for the pursuer what the said driver had said to him on that occasion about the accident. Thereupon counsel for the defenders objected to the question and line of evidence as being hearsay evidence and incompetent.* The presiding Judge repelled the objection and allowed the evidence. Whereupon counsel for the defenders respectfully excepted to his Lordship's ruling.
And the said witness then deponed as follows with regard to said conversation with the defenders' driver:(A.) He said that he was approaching Springfield Lane, and he got a signal from the points-policeman to draw up. He did so, and that was about 23 yards distant from the points-policeman. (Q.) How far would 23 yards distant be on the plan? (A.) Practically in line with the west building line of Springfield Lane. (Q.) That is near the end of the word here in the cars stop here if required? (A.) Yes. (Q.) Did he say when he went on? (A.) That was 23 yards distant, but he moved on until he was within 15 yards of the policeman, and waited a short lapse of time until he got the signal to go on, and then he proceeded forward. He (the driver) saw no one in front, and continued on till a point, he said, 5 yards east of the policeman, when a man was knocked down by the front of his motor. (Q.) And did you ask him (the driver) how he made the distance 5 yards? (A.) Well, he seemed very hazy about that information, and he said that he did not measure the distance, that it might be different, because I had been informed by the points-policeman that the distance to the east was 13 yards...
To continue reading
Request your trial
-
W. v Kennedy
...to the proceedings before the children's hearing or the referral to the sheriff. Cases such as Livingstone v. Strachan, Crerar & Jones 1923 S.C. 794, Wilson v. JacobsUNK 1954 S.L.T. 215 andJackson v. Glasgow CorporationSC 1956 S.C. 354 show that the exception is rigidly confined to a party ......
-
Jackson v Glasgow Corporation
...ed.) vol. i, secs. 244, 247. 3 Reference was made to Smith v. Puller, (1820) 2 Mur. 340. 4 Livingstone v. Strachan, Crerar & Jones, 1923 S. C. 794; Scott v. Cormack Heating EngineersSC, 1942 S. C. 159; Wilson v. JacobsUNK, 1954 S. L. T. 5 Harper v. Harper, 1.929 S. C. 220, Lord Hunter at p.......
-
Ryan v Mill
...2 Frank v. H. M. AdvocateSC, 1938 J. C. 17;M'Taggart v. H. M. AdvocateSC, 1934 J. C. 33. 3 Livingstone v. Strachan, Crerar & Jones, 1923 S. C. 794. 4 Winning v. Torrance, 1928 J. C. 5 55 and 56 Vict. cap. 55. The relevant provisions of sec. 409 are quoted in the rubric. 6 1913 S. C. (J.) 61......
-
Frank v H. M. Advocate
...(Grierson's ed.) vol. i, sec. 246, p. 185. 2 Jordan v. BruceUNK, (1903) 10 S. L. T. 458. 3 Livingstone v. Strachan, Crerar & Jones, 1923 S. C. 794, Lord Justice-Clerk Alness at p. 4 M'Taggart v. H. M. AdvocateSC, 1934 J. C. 33. 5 Supra, p. 7. 1 Gall v. GallUNK, (1870) 9 Macph. 177. 1 (1870)......