Scottish Court of Session Decisions

In this action Mr Robert M'Call originally sued John Muir, Innkeeper, Dalbeattie, for damages sustained by him in consequence of his having been thrown out of a conveyance hired by him from the defender on the 15th December 1866. The conveyance was alleged to have upset on the road between Dalbeattie and Auchencairn through the recklessness, negligence, and incapacity of Hugh Kerr the defender's servant, for whom the defender was responsible, whereby the pursuer had his left arm broken and dislocated, and was rendered permanently disabled from working at his trade.

Mr M'Call died in 1868, and the action was now insisted in by his brother Francis M'Call.

After a proof the Sheriff Substitute ( Dunbar) pronounced the following interlocutor:—

“ Kirkcudbright, 3 d June 1869.—Having heard parties' procurators on the record and proofs, Finds as matter of fact that the original pursuer, the late Robert M'Call, coachbuilder, Dumfries, having some business to transact at Auchencairn on 15th December 1866, went on the morning of that day by railway to Dalbeattie, where the defender kept an inn and posting establishment, and there procured on hire a dog-cart and driver to convey him from Dalbeattie to Auchencairn, and back from Auchencairn to Dalbeattie, in time for the afternoon train of that day from Dalbeattie to Dumfries: Finds that the driver of the dog-cart on said occasion was Hugh Kerr, a person of fifty-six years of age, of forty years' experience in driving, and regarded by his master, the defender, as a cautious and steady as well as an experienced driver, and the dog-cart was drawn by a quiet steady horse, that had been in the defender's possession for some years: Finds that said pursuer accordingly proceeded to and arrived safely at Auchencairn in said conveyance driven by Kerr, and having transacted his business there, left it on his return journey to Dalbeattie about 4 p.m. in the same conveyance, under the charge of the same driver: Finds that the pursuer and Kerr the driver were quite sober on leaving Auchencairn, and proceeded on their journey at the moderate pace of seven or eight miles an hour till they reached Thornglass, where they were met by a cart heavily loaded with tiles, under the charge of a young man, Thomas Morton, farm-servant at Hazlefield: Finds that in passing each other the two vehicles came into collision, and in consequence thereof the said pursuer was thrown violently out of the dog-cart and sustained a comminated fracture of the left elbow joint, which required surgical care and attendance for some weeks, and occasioned permanent injury and disability for work in that arm, as well as serious pecuniary loss and damage to the pursuer in his business, both as a master and as an occasionally operative coach builder: Finds that when said collision occurred the dog-cart was on the north, the proper side of the road, and the driver of the loaded cart was at his horse's head, and leading him: Finds that the pursuer, immediately after the collision, and on the same evening, in conversation with the defender and others regarding the cause of it, represented it as accidental, and exonerated Kerr, the driver of the dog-cart, of any blame: Finds that from said 15th December 1866, when the pursuer received his injury, till 27th April 1867, a period of four months and a-half, he never made any complaint to the defender against the driver Kerr, nor intimated any claim of damages against the defender on account of said collision: Finds it not proved that said collision and the pursuer's consequent injury were occasioned by the negligence, recklessness, incapacity, carelessness, or fault of the said Hugh Kerr, the defender's servant, and the driver of the dog-cart on said occasion: Finds, in point of law, that the grounds of action insisted in by the original pursuer, the deceased Robert M'Call, and now maintained by his brother and executor dative Francis M'Call, have not been established: Therefore sustains the defences, assoilzies the defender from the conclusions of the action, finds the defender entitled to expenses, as the same shall be taxed by the auditor of this Court, to whom remits the account thereof when lodged, and decerns.”

The Sheriff-Depute ( Hector) adhered.

The pursuer appealed.

Pattison and Hall for him.

Millar, Q.C. and Scott were not called on.