Wood v North British Railway Company

JurisdictionScotland
CourtCourt of Session
Judgment Date17 October 1899
Docket NumberNo. 1.,No. 90.
Court of Session
2d Division

Lord Young, Lord Trayner, Lord Moncreiff, Lord Justice-Clerk.

No. 1.
Wood
and
North British Railway Co.

PropertyTrespassRailwayRailway StationRight of railway servants to remove trespasser by force.

Held that when a cabman in a railway station has concluded the business which brought him there and refuses to leave, and persists in refusing to leave, he becomes a trespasser, and the railway servants are at common law entitled to remove him by force if necessary.

ProcessJury TrialJudge's Charge.

Observed by Lord Young that when a Judge at a jury trial is asked to lay down a certain proposition in law, he has not merely to consider the soundness of it as an abstract proposition, but also whether it is right and proper that such a direction should be given to the jury in the particular case before them.

This case is reported ante, February 14,1899, 1 F. 562. It was tried before the Lord Justice-Clerk, with a jury, on 19th June 1899, on the issue,Whether, on or about 10th September 1898, the pursuer was wrongfully and forcibly taken into custody, and removed from said railway station to Waverley Market Police-Office, in custody, by Walter Wilson and Thomas Hulse, while acting in the course of their employment by the defenders at said railway station, to the loss, injury, and damage of the pursuer?

At the trial the pursuer's case was to the effect that, having gone to the defenders' Waverley Station with a passenger, he was moving out when he was hailed by a man who wished to hire his cab and to place a box on it; that the railway constables refused to let him take the box upon his cab, and after a dispute took him into custody forcibly, and took him to a police station.

The Lord Justice-Clerk gave, inter alia, the following direction to the jury:That when a cabman in a railway station has concluded the business which brought him there and refuses to leave, and persists in refusing to leave, he becomes a trespasser, and the railway servants are at common law entitled to remove him by force if necessary.

The pursuer excepted to this direction as wrong in law, and further asked the Lord Justice-Clerk to give the following direction:That the pursuer, if lawfully in the station premises with his cab, did not wilfully trespass within the meaning of the 16th section of the Railways Regulation Act, 1840,* by accepting an engagement from a passenger to drive the passenger and his luggage from the station.

The Lord Justice-Clerk refused to give this direction, whereupon the pursuer's counsel excepted.

The jury returned a verdict for the defenders.

The pursuer presented a bill of exceptions.

Argued for pursuer;(1) The direction given was erroneous. Assuming the station to be private property, it was a place at which a cabman was invited to be and had a right to be. But be it ever so much private, a man did not become a trespasser by refusing to leave private property. He could be interdicted from returning, but could not be forcibly removed. [Lord Trayner.The notion, often expressed, that there is no such thing as trespass in the law of Scotland, and that if a man is, contrary to the desire of the proprietor, on private property he cannot be removed, seems to me to be a loose and inaccurate one.] (2) The direction which the Judge declined to give was good law. In the circumstances he should have given it. No sound objection to it in law could be stated.

The defenders' counsel were not called on.

Lord Young.I thought from the first, and I have seen nothing to affect the impression, that the bill of exceptions is quite unfounded. I observed in the course of the discussion that when a presiding Judge at a jury trial is asked to lay down a certain proposition in point of law, he has not merely to consider the soundness of it as an abstract proposition, but also whether it is right and proper that such a direction should be given to the jury in the particular case before them. It may be a proper direction to give, qualified by a great number of explanations which it is inconvenient to give, and which might lead to undesirable results. I say that with reference to the second exception herethe exception to the refusal of the Judge to lay down a certain proposition in point of law which he was asked to do. I think myself that the learned Judge was quite right in refusing to give that direction.

On the first exception, which is an exception to a direction which was given, I am of opinion that the exception cannot be sustained. I think it was a perfectly sound directionthat a cabman, or indeed any other person,

but especially a cabman with a carriage and horse, must obey the orders of a railway company's authorised servants as to leaving the station, and when he is ordered to leave it he must leave it, and if he refuses and persists may be turned out. He is not to remain there until it has been settled by some disinterested tribunal whether he had right to remain, and whether the servant of the railway company was wrong in ordering him out. If he were wrong in ordering him out, his duty was to obey, and there would be a remedy for any injury which had been sustained on account of his having been turned out by order in circumstances in which he ought not. I am therefore of opinion upon the bill of exceptions that it must be disallowed.

Lord Trayner.I agree.

Lord Moncreiff.I am of the same opinion.

The Lord Justice-Clerk.I am of the same opinion.

The Court refused the bill of exceptions.

* The Railway Regulation Act, 1840 (3 and 4 Vict. c. 97), sec. 16, enacts,If any person shall wilfully obstruct or impede any officer or agent of any railway company in the execution of his duty upon any railway, or upon or in any of the stations or other works or premises connected therewith, or if any person shall wilfully trespass upon any railway or any of the stations or other works or premises connected therewith, and shall refuse to quit the same upon request to him made by any officer or agent of the said company, every such person so offending, and all others aiding or assisting therein, shall and may be seized and detained by any such officer or agent, or any person whom he may call to his assistance, until such offender or offenders can be conveniently taken before some Justice of the Peace for the county or place wherein such offence shall be committed, and on conviction shall be liable in a penalty.

Court of Session
2d Division

Lord Kincairney, Lord Justice-Clerk, Lord Young, Lord Moncreiff.

No. 90.
Wood
and
North British Railway Co.

ReparationMaster and ServantScope of EmploymentAssaultIllegal ArrestRailwayRailway Regulation Act, 1840 (3 and 4 Vict. cap. 40), sec. 16Issues.

In an action by a cabman against a railway company for damages for assault and illegal arrest, the pursuer averred that after he had set down a person whom he was engaged to drive to one of the defenders' stations, he was ordered to move on by one of the constables in the defenders' employment, who told him that only cabs belonging to a particular firm were allowed to ply for hire in the station; that while he was driving towards the exit from the station he was engaged by another passenger, and while he was putting a box belonging to the passenger on the cab the constable came up and knocked it out of his hands; that the passenger having gone off, the pursuer then mounted his cab with the intention of driving off from the said railway station, when the said constable along with another constable, also in the defenders' employment, jumped up on the pursuer's cab, seized him, and dragged him heavily to the ground, and then, without any warrant marched him in their custody to the police station, and there charged him with committing a breach of the peace, upon which charge he was subsequently tried and convicted; that in assaulting the pursuer and in taking him into custody the constables acted wrongously and oppressively, since, even assuming that he had committed a breach of the peace, it was their duty to have taken his name and cab number, after which he could have been proceeded against in the ordinary way by being cited to answer to the charge; in acting as they did towards the pursuer, the constables were acting in the course of their employment, although they grossly exceeded what was necessary or proper.

The defenders pleaded that the action was irrelevant on the ground that, according to the pursuer's own shewing, the constables were not acting in the course of their employment when they seized the pursuer and took him into custody; and alternatively, on the ground that the pursuer had not alleged that the constables had done anything which they were not entitled to do under the Railway Regulation Act, 1840, sec. 16.

Held (aff. judgment of Lord Kincairney) that the pursuer's averments were relevant.

In the foregoing action the Lord Ordinary allowed two issues, one founded on the alleged assault and the other on the alleged illegal arrest.

Held (reversing the judgment) that only a single issue fell to be allowed.

Form of issue approved by the Court.

Res JudicataSummary ConvictionSubsequent civil action for damages.

A person who had been convicted...

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