Scottish Court of Session Decisions

Lord President—The defenders in this case have attacked the judgments of the Sheriff-Substitute and the Sheriff, both on the question of liability and on the question of the amount of damages. With regard to the question of liability, I do not think that the defenders have been able to shake the fundamental ground upon which both of these judgments were founded, viz., that the motor car came in sight of the pursuer and his trap at such a distance—which I think cannot be put at less than twenty yards—as to give the motor-driver an adequate opportunity to decide what he should do, and to make it quite practicable for him to pull up in time to prevent collision with the dogcart, instead of undertaking the perilous adventure of forcing a passage between it and the bank and hedge on the near side of the road.

Apart from the serious nature of the injuries which the pursuer unfortunately suffered, his case is not one which commends itself to sympathy. He was driving on a road only some sixteen feet in breadth, which he must have known was not unfrequented by motor traffic; and he chose to drive round a corner which he himself describes on his record as “blind” and dangerous, on the wrong side of the road, thus blocking the way for traffic rounding the corner in the opposite direction on the right side of the road. It was attempted in argument to justify his conduct by asserting the general right which traffic has to occupy any part of the road in the absence of what I may describe as competing traffic. But it is going too far to appeal to that general principle in support of the pursuer's conduct while rounding a blind and dangerous corner, especially in view of the conditions of modern rapid traffic. There was no excuse in the condition of the road or otherwise for the pursuer driving his dogcart at this place on the wrong side. In fact he was grossly negligent of his own and other people's safety.

But the real question is what was the real cause of the accident, and in the circumstances briefly outlined at the outset of this opinion I think the cause was that the driver of the motor car attempted, without necessity or justification, to get round the pursuer's dogcart by mounting the bank at the side of the road when he could without difficulty have brought his car to a standstill. It is true that when the pursuer of an action such as this by his own misconduct places the opposing vehicle suddenly and unexpectedly in a position of great difficulty he may disentitle himself from attributing to the driver of that vehicle anything more than an excusable error in judgment, made in circumstances in which it would be unfair to apply the strict standard of traffic conduct which applies in ordinary circumstances. But I do not think that the circumstances in this case raised a position of embarrassment of that character, for the motor-driver had a space of about twenty yards in which to decide and act.

I am not prepared to proceed upon the view that the motor car was driven at an excessive speed. It had all but passed out of the ten miles control. Its speed may have been eleven or twelve miles an hour, or, as the Sheriff-Substitute thinks, fifteen, but I am not prepared to rest my judgment upon a matter so fine as that. Nor am I prepared to proceed upon the evidence as to whether the horn was blown before coming out of the ten miles control or in mounting the hill from the bridge. The ground upon which I prefer to put my decision is sufficient without going into these debateable matters.

The result is that the judgment, so far as liability is concerned, must stand.

[ His Lordship then dealt with the question of the amount of damages.]

Lord Sherrington—In so far as regards the question of liability, the material facts are few, and are not in dispute. At the time of the accident the pursuer was driving his dogcart round a blind corner, and so much on the wrong side of the road as to leave no room for approaching traffic to pass in safety. By so doing he negligently imperilled the safety of other users of the road.

The next question is whether the driver of the defenders' motor car was not also negligent. He deponed that he had it in his power, if he chose, to stop the motor car in its own length, namely, a distance of about fourteen feet. He was going up hill, he had just changed his gear, and he was emerging from a piece of road which was under a ten-mile control. Accordingly I have no reason to suppose that his testimony as regards the crucial matter was inaccurate. He further deponed that when he first caught sight of the dogcart it was thirty feet away. In my judgment the distance was about sixty feet. In either view the driver had it in his power to avoid a collision with the dogcart by bringing his motor car to a standstill. Prima facie, therefore, he was in fault for not so acting as to avoid a collision. It was maintained, however, that the present case falls within the familiar category of cases where it has been held that a person in charge of a ship or of a vehicle is not necessarily to be held guilty of negligence because he committed an error of judgment when placed through no fault of his own in a position of difficulty

Page: 88↓