Thomas Duncan, Treasurer to the Trustees of the Perth and Dundee Turnpike Road, - Appellant; James Findlater, - Respondent

JurisdictionScotland
Judgment Date23 August 1839
Date23 August 1839
CourtCourt of Session

English Reports Citation: 7 E.R. 934

FROM THE COURT OF SESSION.

Thomas Duncan, Treasurer to the Trustees of the Perth and Dundee Turnpike Road
-Appellant
James Findlater
-Respondent

Mews' Dig. x. 100; xv. 139; S.C. Macl. and R. 911; 7 Scots R.R. 333. Discussed in Mersey Docks Trustees v. Gibbs, 1866, L.R. 1, H.L. 116, and Harris v. Great Western, Railway Company, 1876, 1 Q.B.D. 528; and see Thomson v. Mitchell, 1840, 1 Rob. 162; Heriot's Hospital v. Ross, 1843, 5 Dunlop, 589, 5 Bell App. 47, 55, 57; Ministers of Edinburgh v. Magistrates, 1845, 7 Dunlop, 687, 700, 718, 724, 6 Bell App. 534; Adamson v. Clyde Navigation Trustees, 1860, 22 Dunlop, 606, 4 Macq. 931; Lamb v. Magistrates of Jedburgh, 1865, 3 Macph. 1110, 1111; Blue v. West Kilbride Free Gardeners Society, 1866, 4 Macph. 1045, 1046; Virtue v. Alloa Police Commissioners, 1874, 1 Rettie, 285.

APPEAL from the court or session. THOMAS DUNCAN, Treasurer to the Trustees of the Perth and Dundee Turnpike Road,- Appellant; JAMES FINDLATER,- Respondent [July 4, 8, Aug. 23, 1839]. [Mews' Dig. x. 100 ; xv. 139 ; S.C. Macl. and E. 911 ; 7 Scots B.E. 333. Discussed in Mersey Docks Trustees v. Gibbs, 1866, L.E. 1, H.L. 116, and Harris v. Great Western, Railway Company, 1876, 1 Q.B.D. 528 ; and see Thomson v. Mitchell, 1840, 1 Rob. 162; Heriot's Hospital v. Ross, 1843, 5 Dunlop, 589, 5 Bell App. 47, 55, 57 ; Ministers of Edinburgh v. Magistrates, 1845, 7 Dunlop, 687, 700, 718, 724, 6 Bell App. 534 ; Adamson v. Clyde Navigation Trustees, 1860, 22 Dunlop, 606, 4 Macq. 931 ; Lamb v. Magistrates of Jedburgh, 1865, 3 Macph. 1110, 1111; Blue v. West Ktfbride Free Gardeners Society, 1866, 4 Macph. 1045, 1046; Virtue v. Alloa Police Commissioners, 1874, 1 Rettie, 285.] The trustees appointed under a public Eoad Act are not responsible for an injury occasioned by the negligence of the men employed in making or repairing the road. The funds raised by such Act cannot be charged with compensation for such an injury; the persons employed on the road not being in the situation of ser- vants to the trustees: This was an action brought at the instance of James Findlater, innkeeper in Perth, against the Appellant, treasurer of the trustees for the turnpike-road through the Carse of Gowrie, which extends from the city of Perth to the boundary of Forf ar-shire, near the town of Dundee. The action was laid upon the General Eoad Act, 1 and 2 William 4, c. 43, s. 16, by which the trustees of every turmpikenroad were authorized to sue and be sued, in all actions or processes, in the name of their clerk or treasurer for the time being. The summons narrated, that the trustees,* " or their surveyors or contractors, or * The trustees were appointed under a local Act, 2 Will. 4, c. 32, which contained the following enactment: " Sect. 16. And be it farther enacted and declared, that at any of the stated general meetings of trustees, it shall be lawful for the said trustees to direct the tolls arising at the gates or turnpikes erected or to be erected on the said roads, to be applied towards making, repairing, upholding, and improving the aforesaid roads and bridges thereon respectively, in, such manner as the said trustees shall think fit; and paying the expense of management, interest of the money borrowed, advanced, and owing at the time; and the surplus shall be appropriated annually to extinguish the principal of the money so borrowed, advanced, and owing, and to no other purpose whatsoever." The 1 and 2 Will. 4, c. 43, is the General Turnpike Act for Scotland. The second section of that Act is in the following terms : " And whereas it is of great importance that one uniform system should be adhered to in the laws for, regulating the management and maintenance of turnpike roads throughout Scotland ; be it therefore enacted, that from and after the passing of this Act, all the enactments, provisions, matters, and things in this Act contained, shall extend to all local Act of Parliament now in force, and to all Acts of Parliament which shall hereafter be passed for makijng, etc. any turnpike road in Scotland." By the 101st section- it was enacted, " that if the surveyor of any turnpike road, or any contractor, or other person employed on such road, shall lay on any part of any such road any heap of stones, or other materials for the repair thereof, and shall permit the same to remain longer than necessary for the breaking and spreading of 934 DUNCAN V. F1NDLATER [1839] VI CLAKK & FINNELLY. other person or [895] persons for whom these trustees were and are responsible, were engaged in constructing or repairing a large drain or ditch, running along the side of the turnpike: that a quantity of stones, intended to be used in that operation, had been thrown down, and allowed to remain on the road, so as to form a dangerous obstruction to travellers at night: that the trustees, or workmen, or others employed, permitted the stones to remain on the road without adopting the precautions necessary to be taken to prevent danger: that the pursuer, having occasion to travel along the road by night, in a gig, accompanied by his son, the gig came in contact with the stones, and was over-[896]-turned, by which the pursuer himself was injured, and his son so seriously hurt that he died in consequence of the injuries received." The summons concluded for payment of a sum of 500 for solatium to the pursuer, on account of the death of the boy, and for a farther sum of 500 asi a compensation for the loss and injuries which he alleged he himself had sustained. The plea in law for the pursuer was to the effect, that, " having sustained injury in his person, property and feelings, as set forth in the revised condescendence, from the wrongful acts of the trustees upon the Dundee and Perth turnpike-road, or of others in their employment and acting by their authority, the defender, as represent^ ing these parties, is liable in damages, as reparation and solatium, to the pursuer, conform to the conclusions of the libel." The pleas for the Appellant, as representing the trust, were, that the pursuer was not entitled to damages on account of his son's death; that the injuries to1 the pursuer himself were not of a nature to give rise to any claim of damage; and, " that at any rate, the overturn and consequent injury, such as it was, not having arisen from misconduct on the part of the trustees, or of any person, for whom they are in law responsible, or from any cause for which they are legally responsible, the defender is entitled to' absolvitiur." The fact that the...

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