Scottish Court of Session Decisions

Lord President—In this case it is necessary, in the first place, as it is in considering any bill of exceptions, to look to the terms of the issue; but, in the second place, it is necessary, in considering a bill of exceptions like this-where the exceptions are taken to the directions given after all the evidence has been led on both sides-to look to the case attempted to be made on the evidence by the pursuer and defenders respectively. The Court is not entitled to consider the evidence with the view of coming to a conclusion in point of fact itself, but for seeing, on the one hand, what is the nature of the case which the pursuer tried to make; and, on the other hand, what is the nature of the case of the defenders. Now the question raised in the issue was, whether—[reads issue]. And, as in many such cases, the whole question in dispute arose on the words, “through the fault of the defenders.”

On the one hand, the pursuer contended that she had shown that the fault which led to her daughter's death was attributable entirely to the fault of the defenders of their servants; that the mash-house was the place where persons came to purchase draff, and that the mash-house was dangerous because of the shaft being unfenced. On the other hand, the defenders contended, as matter of fact, that the mash-house was not the proper place for such persons to come; that they were not allowed to come into the mash-house, and that the deceased was well aware of this rule, and came there notwithstanding. Now what is the direction given by the judge in these circumstances? He tells them, under that head of his charge excepted to under the first exception, that—[reads]. The chief objection, and the only serious one to it is, that it is equivocal and ambiguous, and therefore calculated to mislead the jury, or calculated to lead different jurymen in different directions, according to the meaning they might attach to the words. “Ought not to have been in the mash-house,” implies The existence of fault somewhere, but that might be either entirely in the deceased herself, or it might be entirely in the defenders' workmen, or partly on the one side and partly on the other. Now, according to what may be the state of the fact on the evidence, a different result will follow. If it was entirely the fault of the deceased herself, the defenders are entitled to a verdict. If entirely the fault of the defenders or their servants, the pursuer will be entitled to a verdict. If partly the fault of both, the legal result is, that the defenders are still entitled to a verdict. And the jury had, in digesting this evidence, this most misleading direction, that if they were satisfied that the deceased ought not to have been in the mash-house on the occasion in question, the defenders were entitled to a verdict. And the difficulty is aggravated when you come to consider that one part of the jury may have thought it all the fault of one, a second part of the jury may have thought it all the fault of the other, while a third part may have thought it the fault of both, while yet they might all coincide in the verdict, which they certainly ought not to have done if they entertained these different views of the evidence. That is my reason for thinking it impossible not to allow the first exception. Then as to the second exception, I look on it differently, for that is a false proposition in law. It is—[reads], Now it does not matter in what connection with the evidence you consider this proposition, nor under what circumstances, because the gist of this direction is, that the act of the servants of the defenders, which would otherwise and in the ordinary case have made the defenders liable, would not do so if the act were done in contravention of the defenders' order. Now this is unsound, because the act, whether done in contravention of the defenders' order or not, has nothing to do with the legal liability of the defenders.

The second exception, therefore, must also be sustained. But I cannot conclude without saying that I am exceedingly sorry to be driven to this conclusion, because we have seen the state of the evidence, and one cannot help seeing that the case is not sufficient to affix liability on the defenders; and that, if that evidence is repeated to a jury, the pursuer cannot get a verdict, because fault is disclosed on the part of the deceased herself, which is quite sufficient to free the defenders. But we cannot travel out of the bill of exceptions, and must deal with them as I have indicated.

The other judges concurred.

Exceptions allowed, and new trial appointed, reserving all questions of expenses.