Malley v London, Midland and Scottish Railway Company
| Jurisdiction | Scotland |
| Judgment Date | 27 January 1944 |
| Date | 27 January 1944 |
| Docket Number | No. 11. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Sheriff of Lanarkshire.
Reparation—Negligence—Master and Servant—Servant pro hac vice—Railway company providing gratuitously engine and crew for work in third party's yard—Liability of railway company for negligence of crew.
A workman employed by the owners of certain works was knocked down and injured on a railway track in their yard by a railway engine belonging to, and operated by servants of, a railway company. From the proof in an action of damages at his instance against the railway company and the owners of the works it appeared that for some years under an informal agreement contained in correspondence—which was not produced—the railway company had gratuitously lent an engine and crew, consisting of a driver, a fireman, a guard and a shunter, to the owners of the works for two shifts every working day, the crew carrying out any work in the yard for which an engine was required. From the averments of the railway company it appeared that they had some interest in the arrangement. The engine was operated by its crew in accordance with general directions given by the officials of the works, but the actual conduct of the operations was left entirely to the crew. The railway company contended that the crew of the engine became, while employed in the yard, pro hac vice servants of the owners of the works, thereby relieving the railway company of liability for the admitted negligence of the driver and the fireman.
Held that there had been no transfer of the railway company's servants to the owners of the works such as made the latter liable, as masters, for the negligence of the driver and fireman; and, accordingly, that the railway company were liable in damages.
Observed that the onus of proof is on the party seeking to establish a transfer, and that the terms of the agreement between the two employers concerned are always important, and may be conclusive.
Joseph Malley brought an action in the Sheriff Court of Lanarkshire in Glasgow against (first) the London, Midland and Scottish Railway Company, and (second) Colvilles, Limited, his employers, for damages in respect of injuries which he had sustained when he was knocked down within the premises of the second-named defenders by a railway engine belonging to, and manned by servants of, the first-named defenders.
The averments of parties, so far as relating to the question with which this report is concerned, were as follows1:—(Cond. 4) "The accident was caused through the fault and negligence of first-named defenders' servant, the driver of the said engine, for whom the first-named defenders are responsible, in driving his engine without giving any warning of his approach, without keeping a proper lookout, and in driving it against the pursuer. It was the duty of the said driver to have kept a proper lookout, to have given adequate warning of his approach, and to have refrained from driving his engine against pursuer. In these duties he failed, and so was responsible for the accident. … Alternatively, it is averred that first-named defenders were engaged in carrying out shunting operations at the request of and for the convenience of the second-named defenders. Shunting operations in said yard are carried out under the control and supervision of the second-named defenders or their servants, and were under such supervision and control on the day of the accident. The foreman of the second-named defenders, named William Fleming, was in fact present at the time of the accident, was exercising supervision and control of the shunting operations in the yard, and was actually on the engine when the accident occurred. It was the duty of the second-named defenders or their foreman, or their other servants or servants, to arrange for the safety of the pursuer and their other servants during shunting operations either by giving him specific warning of the intended return passage of the engine or by arranging that he should be given work away from the railway track during the period the shunting operations were to take place, and this duty they failed to do, and so were responsible for the accident. … The statements for each of the defenders in so far as they impute fault against the other defenders are adopted by the pursuer. Quoad ultra the answers for both defenders in so far as they impute fault to the pursuer are denied." (Ans. 4 for the first-named defenders) "Admitted … that these defenders were carrying out shunting
operations at the request of and for the convenience of the second-named defenders under the supervision and control of the second-named defenders or their servants; that the second-named defenders' foreman, named William Fleming, was present, was on the engine, and that it was the duty of the second-named defenders or their foreman, or other servant or servants, to arrange for the safety of the pursuer during shunting operations, either by giving him specific warning of the intended return passage of the engine or by arranging that he should be given work away from the railway track during the period the shunting operations were to take place. Quoad ultra denied. … Explained further that the arrangement between the first-named and second-named defenders is of an informal kind, and is mainly in the interest of the second-named defenders. The first-named defenders' part in the arrangement is to provide gratuitously an engine and crew to assist in the shunting of traffic in the yard of the second-named defenders under the foresaid supervision. At the time of the said accident the said crew were engaged in assisting in the carrying out of the said shunting operations for the second-named defenders and were pro hac vice in the employment of the second-named defenders. … it is explained and averred that while working within the premises of the second-named defenders the engine crew were bound to obey all orders and instructions which the second-named defenders gave them and in particular in regard to the lookout which should be kept, the occasions on which a whistle should be sounded, the number and intensity of the blasts which should be given and the maximum speed at which the engine should be driven. Explained further that there is no arrangement whereby two of the first-named defenders' brakesmen are in attendance at the shunting, although one brakesman and sometimes two brakesmen may be present." (Ans. 4 for the second-named defenders) "The pursuer's averments so far as directed against the first-named defenders are admitted and adopted by the second-named defenders. … Averred that the presence on the engine of the said William Fleming, who was a yardsman and fellow-servant of the pursuer, was casual, he having taken the opportunity of mounting upon it as it passed him in the direction in which he was going. In answer to the pursuer's and the first-named defenders' averments of control and duty on the part of these defenders, denied that the shunting operations were carried on under their control and supervision or that of their servants, or that there was any duty other than fulfilled by them to arrange for the safety of the pursuer.Quoad ultra the averments of the pursuer and the first-named defenders so far as not coinciding with these defenders' averments are denied. Explained and averred that the provision by the first-named defenders of an engine for shunting purposes in these defenders' premises was the subject of arrangement between the first-named and second-named defenders for their joint interest and convenience, that the first-named defenders daily made available in the second-named defenders' works one of their engines driven by one of their servants accompanied by a fireman, who assisted the driver, and by two brakesmen, who directed the shunting operations, all of whom had the duty of giving warning to any person in the works whose safety might be affected by their operations. At the time of the said accident the said engine and crew were not engaged in shunting operations for these defenders. At a short distance from the locus of accident there is a curve in the line at the corner of a building which obstructs view, and where it is a custom as was well known to the first-named defenders' driver and where it was his duty to sound the engine whistle. This the first-named defenders' driver failed to do, and the accident to the pursuer, who did not have warning thereby of the position of the engine, was therefore due to the culpable failure of the engine driver, for whose actings the first-named defenders were responsible.…"
The pursuer pleaded, inter alia:—"(2) The pursuer having suffered loss, injury, and damage through the fault of the first-named defenders or their servant, decree as craved should be granted. (3) The pursuer having suffered loss, injury, and damage through the fault of the second-named defenders or their servants decree as craved should be granted, with expenses."
The first-named defenders pleaded, inter alia:—"(2) The pursuer not having been injured through the fault or negligence of the defenders or their servants, the defenders are entitled to absolvitor, with expenses. (4) The shunting operations having been under the supervision and control of the second-named defenders andesto that the pursuer's loss and damage were due to fault and negligence arising from the shunting, the first-named defenders should be assoilzied, with expenses. (5) The said engine crew and in particular the said engine driver having been at the time of the accident pro hac vice servants of the second-named defenders, the first-named defenders should be assoilzied."
The second-named defenders pleaded, inter alia:—"(2) The pursuer not having suffered loss, injury, or damage through the fault of these defenders, they should be assoilzied. (4) The said accident having been caused by the fault of the first-named defenders, these defenders should be...
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