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within his legal rights, cannot in respect of the exercise thereof be liable in compensation. (6) The deposit of said manure bags being an ordinary act in farming operations, no liability attaches to the defender in connection therewith. (7) The place where said manure bags were put being ground neither cultivated nor beneficially used, but mere waste land belonging to the defender, he was entitled to put same there in the exercise of his legal rights without incurring any liability for so doing. (8) Contributory negligence."

On 28th October 1893 the Sheriff-Substitute (LYELL) repelled the defender's first plea, and before further answer allowed a proof.

The pursuer thereafter appealed to the Court of Session for jury trial, and submitted the following issues as finally amended: -"Whether on or shortly before the 12th day of May 1893 the defender wrongfully placed a quantity of bags of manure furnished with a tarpaulin covering on ground then in the occupation of the pursuer under lease between him and the defender of the farm of Airds, in the parish of Crossmichael, and whether, on or about the said day, the pursuer was injured in his person through his horse taking fright at the said bags or tarpaulin, to the loss, injury, and damage of the pursuer? Damages laid

at £500,"

The defender argued—(1) The pursuer's statements were irrelevant. They did not show that the defender had done anything in this field rendering him liable for accidents caused on the road by horses shying. The placing of manure on a field was a necessary incident of farming. The cases cited by the pursuer were all cases of wrongous obstruction of a high road itself, or of ground immediately adjoining this, practically forming part of the high road, or else, of unfenced, dangerous places abutting on the public highway. In Hardcastle V. South Yorkshire Railway and River Don Company, 1859, 4 Hurl. & Nor. 67, a defender was held not liable for an accident caused by an excavation on his land near but not substantially adjoining the public highway. (2) If the Court thought there was a relevant case under breach of the lease, then that was a question which should not be tried by a jury as involving questions of legal construction.

Argued for the pursuer-A relevant case had been stated-(1) The defender was liable for putting manure even on land he was entitled to enter upon close to the public road in such a manner and quantity as to be a source of danger to those driving. Various statutes prohibited the use of land adjoining a public road so as to be a nuisance to those using the road, and the following cases illustrated the common law which was to the same effect-Barnes v. Wood, 1830,9 C.B. 392; Harris v. Mobbs, 1878, L.R., 3 Exch. Div. 268; Wilkins v. Day, 1883, L.R., 12 Q.B.D. 110. (2) The defender could not put the manure where he did without trespass. The land was still in the possession of the pursuer as tenant.

VOL. XXXI.

At advising

LORD PRESIDENT-The pursuer alleges that as he was driving along a farm road, his horse took fright at a pile of bags of manure covered with tarpaulin, which had been placed by the defender on a field adjacent to the road, that he was thrown out and seriously hurt. The main part of the argument which we heard for the pursuer was on the footing that the defender, who is proprietor of the ground on which the heap was placed, was in fault in having put near a road something which might and did frighten a horse, and the argument proceeded exactly as if the defender were the lawful occupant of the field, and the road a public road. In this view the case against the defender was that having regard to the contiguity of the road, the defender was in fault in putting down a heap of manure so near the road that a passing horse might take fright at it.

In my opinion the case so laid is irrelevant; none of the decisions support it; and any bearing which the statute law cited has on the question is adverse to the pursuer. The proximity of even a highway does not lay an embargo on the cultivation of the adjoining fields, and the deposit of a heap of manure is an ordinary incident of agriculture. Many of the sights and sounds of modern agriculture may startle a horse, but people who go along country roads must lay their account with such risks. The pursuer made nothing in argument of the circumstance that there was a tarpaulin over the manure which flapped in the wind, and if this were a ground of liability, no housewife would be safe to put her clothes out to dry on her own washing-green within sight of a road. It is obvious that country life would be impossible, if the most ordinary and everyday act could not be done without the risk of an action of damages on the ground that somebody's horse had been thereby startled.

The English_cases cited are divisible into two classes-First, those in which there has been an illegal encroachment on the highway itself, and those in which some unusual operation, such as digging a pit in a field, caused an unusual danger. Neither class has any application to the matter in hand. So far as statute law is concerned, the fact that in some statutes some limitations are placed on the free use of adjoining land, suggests that the common law does not recognise such restrictions.

Accordingly I am against allowing the issue originally proposed, which stands second of the amended issues proposed at the close of the debate.

There is, however, another view of the pursuer's case, very obscurely indicated on record, which requires more consideration. It is said that the defender had no right to use or come upon the ground in question at all for agricultural purposes, inasmuch as the pursuer was still tenant of the farm; that the defender's putting the manure heap where he did was an encroachment on the rights of the pursuer, and an act of

NO. XXIV.

trespass; and that the result of this trespass was the accident to the pursuer. It is obvious that the case thus presented is in a totally different chapter of law to that which I have just discussed. The case which I have discussed was that of lawful occupation of ground adjacent to a road, and the case advanced against them was that they had violated the maxim, Sic utere tuo ut alienum non lædas. The

case

now presented makes trespass the gravamen against the defender, the form of trespass alleged being the deposit of manure on ground which he had no right to use for such a purpose--road or no road. Now, I consider this case relevant, and although it is very badly stated, and the pleas as applied to it quite unscientific, I think the pursuer is entitled to an issue.

The issue now proposed by the pursuer, however, is not appropriate, and does not present the question which I have stated. The primary question for the jury, with the aid of the Judge, will be whether the defender committed a trespass by putting his manure where he did, apart altogether from the nearness of the road and solely with regard to the rights of the pursuer under his lease. The next question arises only if this one be affirmed, and it is, whether the shying of the horse was caused by the manure heap being placed where it was? The issue which I propose is as follows-"Whether on or shortly before the 12th day of May 1893 the defender wrongfully placed a quantity of bags of manure, furnished with a tarpaulin covering, on ground then in the occupation of the pursuer under lease between him and the defender of the farm of Airds in the parish of Crossmichael; and whether on or about the said day the pursuer was injured in his person through his horse taking fright at the said bags or tarpaulin, to the loss, injury, and damage of the pursuer? Damages laid at £500."

LORD ADAM and LORD KINNEAR concurred.

LORD M'LAREN was absent at the hearing. Counsel for Pursuer and Appellant Salvesen-Wilton. Agent-T. M'Naught,

S.S.C.

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rities, about forty years ago, had a stone tram track sloping diagonally across and going up the right side of the street for the purpose of easing the traffic. The tram, at the place where the accident after mentioned happened, was about 18 inches from the pavement. The tram line was 3 inches above the pavement, and between them was a gutter 6 inches below the tram. This condition of the street was continued by the city authorities after the street came under their charge. A policeman was placed at the foot of the street in order to regulate the traffic.

On 1st June 1891 while two carts in charge of a man seated on the left side of the first cart was going up the street along the tram, a child, who had been playing with a tin can on the pavement, rushed out after it into the street, and tripping on the gutter fell under the second cart, and was killed by it passing over her.

The father having raised an action against the Police Commissioners for compensation for her death—held that no actionable fault had been proved against the Police Commissioners. Forth Street, Port Dundas, Glasgow, is a steep street lying east and west leading up from Port Dundas Road to the canal. It was taken over by the city from the canal proprietors about forty years ago. At some time prior to its being taken over by the city, a stone cart or tram track was placed on the street, evidently for the purpose of easing the traffic up the hill to wards the canal. This track sloped diagonally across the street from the lower end at Port Dundas Road, and near that end the line of the cart track brought it on the south side for some yards in close proximity to the pavement, the distance at the place where the accident after mentioned happened being little more than 18 inches. There was a water-channel between the cart-track and the pavement, and the cart-track at the place in question was 6 inches above the water-channel and 3 inches above the kerbstone of the pavement, while the depth from the kerbstone of the pavement to the gutter was 2 inches. Immediately to the north of the cart-track the street was causewayed for a short distance, and beyond that it was macadamised for the use of the traffic downhill. In this way the rule of the road was to some extent reversed in the case of vehicles passing up and down the street. This condition of the road as already mentioned existed before it was taken over by the city authorities, but it was continued by them after it came under their charge. During the day there was a constant stream of heavy traffic on the street, which was regulated by a policeman stationed at the foot.

On 1st June 1891 Thomas Currie was going up the street along the cart-track towards the canal with two carts, each drawn by one horse, he being in the leading cart, to which the second horse and cart were attached, and sitting on the left-hand side of the cart, the side furthest from the pave

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ment. After the first cart had passed, and when the second cart was opposite a passage, a little below the house where Adam Scott lived, his daughter, a little girl of five years of age, who had been playing on the pavement along with some other children with a tin at a game called "kick-thebucket," suddenly ran off the pavement after the tin, which had been thrown or had rolled off so as to fall under the feet of the second horse. The child tried to stop herself at the edge of the pavement, but her foot having caught in the gutter or waterchannel, she fell over on the cart-track, and was run over and killed by the wheel of the second cart. No accident leading to an action had ever occurred before in the street.

Adam Scott raised an action for £250 as compensation and solatium for the loss of his daughter against the Lord Provost, Magistrates, and Council of the city of Glasgow, being the Commissioners of Police for Glasgow. He averred, inter alia-"The death of the pursuer's said child was caused by the fault of the defenders the Magistrates and Council of Glasgow-(1) Owing to the defective and dangerous formation of said roadway, which tripped or caused said child to fall thereon; (2) owing to their having constructed or retained on the wrong side of said street, and close to the pavement, so as to endanger the lives of passengers, a track on which they thereby specially invited and instructed vehicles to proceed."

The defenders lodged defences and pleaded, inter alia—“(2) The death of the pursuer's child not having been caused through the fault of the defenders the Police Commissioners, they ought to be assoilzied with expenses."

After hearing proof the Sheriff-Substitute (GUTHRIE) on 2nd August 1892 pronounced the following interlocutor:"Finds that the pursuer has failed to prove that the accident to the pursuer's daughter Annie Derry Scott, on 1st June 1891, in Forth Street, Port Dundas, was due to the faulty formation of the road, for which the defenders are responsible: Therefore assoilzies the defenders, the Lord Provost, Magistrates, and Council of the city and royal burgh of Glasgow, and decerns."

The pursuer appealed to the Sheriff, but on 14th June 1893 the Sheriff (BERRY) adhered.

The pursuer appealed to the Court of Session, and argued-The Police Commissioners were liable, because (1) the tramway was on the wrong side of the road.

The

carter therefore being seated in his proper place at the left side of his horse had been on the side furthest from the pavement, and was thus unable to see the child fall, and to pull up and prevent the accident; (2) the tram line was too near the foot way. Anyone tripping on the pavement might be precipitated on to the tram. The road was a wide one, and the tram could easily have been placed in a less dangerous position; (3) the gutter was much too deep and rough, and the tram was raised above the pavement. The accident would not have occurred if the child had not tripped in the deep rut of the gutter.

Argued for the defenders-No fault had been proved against them. The rule of the road had to be reversed in this street for a good reason, viz., in order to render the uptraffic easier, and a policeman was specially stationed to look after the traffic. The street had been in its present condition for upwards of forty years and no accident had occurred before, and no complaints had ever been made as to its condition-Dargie v. Magistrates of Forfar, March 10, 1855, 17 D., Lord Ivory's opinion, p. 737.

At advising

LORD JUSTICE-CLERK-This is a sad accident, but the question is, whether it is attributable to the fault of anyone?

The traffic at the particular place where it happened was for very good reasons specially regulated, and I think that authorities having charge of a street are quite entitled to regulate the traffic along it, without regard to the ordinary rule of the road, if they are of opinion that circumstances seem to render this desirable.

Here owing to the steep gradient it was thought better in the opinion of the burgh's engineers that there should be a stone tramway, and that it should start from the right side going up, and should gradually curve across the road thereby to a certain extent easing the gradient, and they also had a constable directed to be upon the spot to regulate the traffic, and that was quite right. Further, I have no difficulty in holding that a vehicle is not in fault because it happens to be on a particular side of a roadway if there is no other traffic to make it a duty that it should be on one particular side for the purpose of passing or crossing another vehicle. Driving on a particular side is a matter entirely within the discretion of the driver, except where he has to pass or meet another vehicle. In that case, of course, he must conform to the rule of the road, either the general rule or any special rule prescribed by authority. No fault is therefore attributable to the Magistrates or other authorities because they specially arranged that this tramway should pass up the hill on the right instead of the left side of the road.

It is next said that it was dangerous to have the gutter 6 inches below the level of the pavement. We have familiar instances however of this, and in every town, where, unless the depth was 6 inches, the surface water could not be carried away. The drop may be dangerous to persons who are not careful, or to children under no supervision. But the danger is one which must be faced, and, as has been often observed in this Court, in the case of children whose parents cannot afford to give them such supervi sion, the risk must be taken. It is wonderful how some children in this position learn to appreciate the danger, and how few accidents there are. I am of opinion, then, that there was no fault on the defenders' part in having this gutter as it was.

The only other danger suggested is that the tramway was set at a certain height above the gutter, which necessitated having

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a slope up to the tramway. It has been in this condition for forty years, and apparently no accident has happened. I do not think that this was a danger against which the Magistrates were bound to provide.

On the whole matter I think we must affirm the judgment appealed against.

LORD YOUNG-In all towns some streets from their lie are attended with more danger to the people using them than others. We are all quite familiar with the existence of such streets, and no instances are more familiar than streets formed on ground sloping upward or sloping to one side. Forth Street seems to be on ground of that kind. The question we have to decide is this-Are the public authorities at fault in allowing this street to be there, because it may be attended with danger to those using it for traffic or to children playing on it at "kick-the-bucket?" To say so would be ridiculous. No actionable fault or wrong was committed either by private individuals or by the public authorities in allowing such streets to be constructed and used.

If there had been no tramway in Forth Street, as might easily have been the case, and this accident had happened by reason of a carter driving his horses in the same line as the tramway runs, it was not suggested that there would have been any case against the Magistrates. But because forty years ago it had been thought prudent to put a tramway in this street in order to ease the burden of horses going up the street, and because the Commissioners of Police had not altered the street since they took it over, it was said that they were liable. I must say that appears to be a ridiculous proposition. It was a question for consideration upon which side of the street that tramway might have most efficiently been constructed, and there might be conflicting views as to which was the best side for its position in order that it might ease the traffic, but it did not seem to be suggested that the Magistrates had erred in the exercise of their judgment. There were a great many considerations besides the primary one of easing the horses as to the side on which the tramway should be. One side might have more houses and shops on it than the other. The middle of the street might seem to some as the best place for the tram lines, but I am not going to determine such a question. am satisfied that there is no ground whatever for attributing the accident to the fault that the tramway was there.

I

On the whole matter, and without any doubt, I am satisfied with the findings in fact and law of the Sheriff-Substitute.

LORD RUTHERFURD CLARK-I am satisfied that no blame has been proved against the defenders, and that therefore the defenders should be assoilzied.

LORD TRAYNER-That is my opinion also. I think that no fault at all has been proved against the defenders.

The Court refused the appeal.

31

Counsel for the Pursuer-Shaw-Sym. Agent-Robert Stewart, S.S.C.

Counsel for the Defenders-Lees-Cre. Agents-Campbell & Smith, S.S.C.

Wednesday, January 31.

FIRST DIVISION. SYMINGTON v. CAMPBELL.

Title to Sue-Action of Damages-Title of Party Purchasing Ship to Sue in respect of Damage done Prior to Purchase-Title to Sue of Assignee to Claim of Damage where Assignation Executed after Service of Summons.

Held (1) that the purchaser of a ship had no title to sue in respect of damage done to the vessel prior to the date at which he became the owner; and (2) that the defect in his title was not remedied by an assignation to the claim of damages executed in his favour by the previous owner after the summons had been served.

This was an action of damages at the instance of Joseph A. Symington, "for his individual interest, and also as assig nee of Robert Symington," against James Campbell of Jura.

The summons was signeted and served upon 28th June 1893.

The pursuer made averments to the following effect "The pursuer is the owner of the vessel 'Alarm,' which he purchased in May 1893 from its former owner Robert Symington, who had purchased the vessel in June 1890 from James M'Allister and James Nelson." The defender raised an action of interdict and damages against James M'Allister and James Nelson, the summons in which, containing the usual warrant to arrest on the dependence, was signeted on 31st January 1893. Robert Symington was called for his interest, but no conclusions were directed against him. About the same date the defender obtained the authority of the Lord Ordinary to put the warrant of arrestment into execution. The vessel was, by the defender's instructions, seized on 3rd February. The warrant to arrest contained no authority to arrest Robert Symington's vessel, and the seizure was illegal. The defender was aware before the date of the arrestment that the vessel was the property of Robert Symington. The defender having seized the said vessel, had since detained it in his possession. After seizure the messenger-at-arms employed. . . proceeded to dismantle the vessel The process of dismantling was carried through negligently and without reasonable care and skill. Further, instead of keeping the vessel in safe harbour and taking reasonable precautions for its safety, as the defender, or those acting for him, were bound to do, the vessel was allowed to drift, and was ultimately run aground on the open beach, where it still remained,

Jan. 31, 1894.

with the result that it had become unseaworthy. A record had been made in the said action by the present defender against the said James M'Allister and James Nelson, but after discussion in the procedure roll M'Allister and Nelson had been assoilzied with the consent of the pursuer, the present defender, and it had been subsequently found by the Lord Ordinary, by interlocutor which had become final, that it was incompetent to proceed with said action against Symington to the effect of pronouncing any decree against him in terms of its conclusions, in respect he was only called for his interest.

In article 7 of the condescendence the pursuer averred-"Serious loss and damage has been suffered by the pursuer and his author through the said illegal and wrongous action. The said vessel, when seized, was in course of a trading voyage between Belfast and Stranraer. Further, by the detention of said vessel, there has been lost the trading season which was just beginning when its seizure was effected, and to repair the vessel will take some considerable time. . . The said Robert Symington has assigned to the pursuer all claims competent to him in respect of the illegal arrestment or detention of the said vessel, and of the damage done to said vessel by the fault or negligence of the defender, or those for whom he was responsible."

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The assignation granted to the pursuer by Robert Symington was dated 29th June 1893.

The defender pleaded inter alia that the pursuer had no title to sue.

By interlocutor dated 20th December 1893 the Lord Ordinary (KINCAIRNEY) reserved the defender's plea of no title to sue, so far as it related to the pursuer's claim of damages on account of the alleged illegal and unwarrantable arrestment of the vessel named the "Alarm"; quoad ultra repelled the defender's plea of no title to sue, and before further answer, and under reservation of the pleas of parties, allowed parties a proof of their respective averments, with the exception of certain averments made, in answer to which it is unnecessary to refer.

The defender reclaimed, and argued-On the question of title-The pursuer had no title to sue either in his own right or as assignee of Robert Symington. In the first place, the damage averred was caused prior to the date at which the pursuer purchased the vessel, and as purchaser he could have no right to claim compensation therefor. Secondly, the assignation on which the pursuer founded was dated subsequent to service of the summons, which was the commencement of the action. A pursuer's title to sue was to be judged of as at the date of service of the summons. If his title were defective at that date, the defect could not be cured by a subsequent assignation-Malcolm v. Dick, November 8, 1886, 5 Macph. 18; Wall's Trustees v. Drynan, February 1, 1888, 15 R. 359; Stewart v. North, July 14, 1890, 17 R. (H.L.) 60; per Lord Watson, 63. Stair's dictum quoted for the pursuer applied only to cases where

the action was at the instance of a party having a substantial right, but whose title was not formerly completed, e.g., an executor suing prior to confirmation.

Argued for the pursuer-On the question of title-The pursuer purchased the vessel before the action was raised, and as owner of the vessel he had an independent title to vindicate his purchase and claim damages for injury previously done to it apart from his right as assignee. Further, any defect in the pursuer's title had been cured by the assignation in his favour-Stair, iv. 38, 18; M'Andrew v. Reid, &c., July 11, 1868, 6 Macph. 1063. The assignation had been lodged before closing of the record, and no objection had been taken till the present discussion. The pursuer was the only person having a title to sue in respect of the claim of damages made in the action, and the defender's interests were reasonably protected by the assignation although it was executed after the raising of the action.

Arguments were also submitted on the relevancy, but it is unnecessary to refer to these, as the case was disposed of on the question of title.

At advising

LORD PRESIDENT - I see no answer to the objection raised by the defender to the pursuer's title. At the date when the summons was signeted and served-both things being done upon the same day-the pursuer had no assignation from Robert Symington, and accordingly, so far as regards the injury alleged to have been inflicted upon the owner of the vessel during the ownership of Robert Symington, this pursuer had no title to sue, and valid objections have been raised to the action going on. This is not the case of a person having at the time of raising the action a substantial right requiring only formal competition. The title of the pursuer here depends on a bargain of sale which he does not say had been good at all before the action was raised. The whole transaction took place after the summons had been served. This sweeps away, on the pursuer's own showing, his title to nearly all that he is suing for. It is clear that a man who buys a ship does not thereby buy all previous claims for damages connected with the ship, and therefore the pursuer's claim for damages, so far as rested on what took place before he became owner of the ship, goes by the board, and I go further, and say that there is no averment on this record of any injury having been inflicted upon the owner of the ship after May 1893, when the pursuer bought it. The latest incident averred is that the vessel was allowed to drift away owing to the defender's carelessness, and in consequence got into unseaworthy condition. Now, all this occurred before the 17th May 1893. There is, it is true, a suggestion by the pursuer as to damage having been suffered by him owing to the non-delivery of the vessel by the defender, but his averments upon this point are of too shadowy and unsubstantial a character to be worthy of consideration,

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