Milliken v Glasgow Corporation
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1918 |
| Docket Number | No. 83. |
| Date | 20 July 1918 |
| Court | Court of Session |
Lord Hunter, Lord Justice-Clerk, Lord Dundas, Lord Salvesen, Lord Guthrie.
Reparation—Negligence—Accident due to fault of one or other of several defenders—Accident to member of public through collision of vehicles—Liability for accident—Res ipsa loquitur.
A tramway car had overtaken, and had almost passed, a horse-drawn lorry laden with timber, when it came into collision with the lorry or its load, and one of the side windows at the rear end of the car was broken. A passenger on the car, who was injured through this accident, brought an action of damages against the owners of the tramway car and the owners of the lorry. Fault upon the part of the tramway car was definitely negatived, it being proved that the driver was proceeding carefully and at a moderate speed and that there had been no oscillation or motion of the car which could have contributed to the accident; but at the same time there was no direct evidence of any lateral movement on the part of the lorry, nor, if there had been such movement, was there, any explanation as to what had caused it.
Held in these circumstances that, as a collision had occurred, it must have been caused by a movement of the lorry; that, in the absence of any explanation by the owners of the lorry as to the cause of that movement, it must be deemed to have been due to negligence on the part of the lorryman; and accordingly that the owners of the lorry were liable to the pursuer in damages.
On 15th March 1917 Mrs Alice Diamond or Milliken, with the concurrence of her husband as her curator, brought an action against the Corporation of the City of Glasgow, and also against Chalmers & Butchart, coal merchants and removal contractors, Rutherglen. The conclusion of the summons was that the defenders, jointly and severally, or severally, should be ordained to make payment to the pursuer of the sum of £250.
The pursuer averred that on 19th September 1916 a tramway car belonging to Glasgow Corporation, in which she was a passenger, was proceeding northwards along Farmeloan Road, Rutherglen; that a horse-drawn lorry driven by a servant in the employment of Chalmers & Butchart was travelling ahead of, and in the same direction as, the car; that the lorry was laden with long wooden planks several of which projected beyond the lorry; that, while the lorry was being drawn to the side of the road to make room for the car, the planks crashed against a window of the car and broke the glass; and that the pursuer, who was then pregnant, sustained a severe nervous shock in consequence of which her child was stillborn.
The pursuer also averred:—‘The accident condescended on was due to the fault and negligence of the defenders or one or other of them. At the time of the accident the car and lorry were being driven by servants respectively in the course of their employment with the first-named and second-named defenders. It was the duty of the driver of the car to have the car under complete control and to draw up or stop the car until the lorry was at a safe distance from it. Instead of doing so, he recklessly drove the car forward without giving the lorry time to get clear of the car. This he did at a speed which was unnecessary and dangerous in the circumstances as he failed to have regard to the fact that the collision was the natural and probable consequence of his actings. Further, it was the duty of the driver of the lorry to drive the same carefully and to keep clear of the said car. In these duties he failed and thus he caused or materially contributed to the said accident. Moreover it was the duty of the second-named defenders or their servant to see that the planks were properly and securely loaded, and this was not done. The loading was faulty in respect (1) that the planks were allowed to project unduly beyond the sides of the lorry and were thus a danger to passing traffic and (2) that they were so unevenly placed upon the lorry as to be unstable and ready to fall and yet were not roped or otherwise secured to prevent accident. If the planks had been loaded and secured with ordinary care by being evenly laid and tied by ropes as they ought to have been the said accident could have been avoided, but. these or other precautions the second-named defenders culpably failed to take.’
In answer to this averment Glasgow Corporation averred that the driver of the car, when overtaking the lorry, blew his whistle and sounded his gong to warn the lorry-driver of his approach; that he proceeded to pass the lorry at a slow rate, there being sufficient room to do so in safety; and that ‘after the greater part of the defenders' car had passed the lorry in safety, from some cause, for which these defenders are not responsible, either the lorry or part of its load came in contact with the rear portion of the car and broke a pane of glass.’
The answer for Chalmers & Butchart was:—‘The pursuer's averments applicable to the other defenders are admitted. Quoad ultra denied.’
A proof was allowed and led in the action. The facts as to the collision disclosed at the proof are stated in the following passage from the opinion of Lord Salvesen:—‘The car and the lorry were proceeding in the same direction. When first sighted the lorry was on the rails, and the driver of the car first rang his bell, and then sounded his gong so as to warn the lorry of his approach. The driver of the lorry, who was at his horse's head, was somewhat dilatory in attending to the signals; but he ultimately did take the lorry to the side, so as to make it possible for the car to pass. The space available between the side of the car and the pavement was sufficient, if it had been fully utilised, to have provided a clearance of 1 foot 2 inches, the wood with which the lorry was loaded projecting on each side a distance of about 6 inches. The extent of the actual clearance is only spoken to by one witness, the driver of the car, who puts it at 2 feet, which is considerably more than there could possibly have been unless the lorry load had projected over the pavement. About 25 feet of the car length of 30 feet had passed clear, and it was the second pane from the rear end of the car which was broken.’
On 21st December 1917 the Lord Ordinary (Hunter) pronounced the following interlocutor:—‘Finds that the pursuer has suffered loss, injury, and damage through the fault of the defenders Messrs Chalmers & Butchart; fixes the amount of said damage at the sum of £75, for which amount decerns against the said Messrs Chalmers & Butchart: Finds the pursuer and the defenders the Corporation of the City of Glasgow entitled to expenses as against the said Messrs Chalmers & Butchart.’
Lord Hunter's opinion.—[After referring to the nature of the accident and the injuries sustained by the pursuer]—Neither of the two defenders in this case say that the accident was inevitable. That being so, there must be liability on one or other or both of the two defenders, and all that I have to do is to determine on which.
The fault here, I may say, is of a very slight character, but I confess, upon the evidence, that my own view is quite clear. Against the Corporation, it is said that the tramway car was being driven at a high speed down a slight decline of about 1 in 40 along the Farmeloan Road on the route from Rutherglen to Glasgow. It is averred that, in consequence of the excessive speed at which the car was being driven, the lorry was unable to get out of the way in time and, consequently, the accident occurred. Now, on the evidence, as it has come out before me, I am unable to affirm that fault against the tramway car in this case. The driver and also the conductor say that the car was going at an ordinary pace—it may have been anything up to eight, but not exceeding eight, miles an hour. At a distance of about a hundred yards the driver saw the lorry in front. He first whistled and then he sounded his gong twice, The lorry did not seem to proceed to get out of the way very quickly but, at all events, it did proceed to get out of the way of the tramway car, and the tramway car came on. Three-fourths of the car had passed the lorry before the collision occurred. That is not a case of the tramway car running down an object which is in front of it. It is the case of an object, which has got clear of the car, coming into contact afterwards with the car, and the question is, How am I to find that that occurred?
For the City of Glasgow it is maintained—and I think there is ground for the contention—that the only way in which the accident could reasonably be explained is that the man who was leading the lorry horse did not take the lorry sufficiently near to the...
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