Scottish Court of Session Decisions

This was an action at the instance of Peter Anderson, cattle salesman, Granton, against the North British Railway Company. The pursuer concluded for payment to him by the defenders of two sums—(1) £28, and (2) £18, 8s. 6d., as representing loss caused him by the delay of the Railway Company in conveying certain supplies of pigs to the Newcastle market.

The consignments for the Tuesday morning market at Newcastle-on-Tyne are loaded at the station at Granton the previous afternoon, in order to be conveyed thence to Edinburgh or Portobello, whence they are forwarded by what is known as the “cattle” train to Newcastle, at or about eight o'clock p.m., arriving in time for the morning market.

Anderson for some years had been in the habit of sending his pigs by this train.

On 7th October 1872 the pursuer sent to the station at Granton seventy-one pigs for transmission to Newcastle for the market of the following morning. The pigs were loaded in two trucks about five o'clock in the afternoon, and should have been forwarded to Edinburgh or Portobello for the train leaving at eight o'clock the same evening, for which they were in ample time at Granton station. They did not, however, leave Granton till about midnight; and the consequence was that they missed the cattle train leaving Edinburgh about eight p.m., and were not received in Newcastle till too late for the market, and had to be kept for a week before being sold.

This formed the subject of the first claim, the pursuer maintaining that the defenders had wrongously failed to implement their contract of carriage, and that by having to keep the pigs in Newcastle for a week a loss in value to the amount of £28 was incurred. The defenders set forth that they had no special contract with Anderson to deliver in time for the market, and the rates for carriage paid by him were only the usual ones. Delivery was taken about noon on the Tuesday without objection, and there was no unreasonable delay in transitu. The Company do not undertake to deliver live stock in time for any particular market.

The second ground of claim was as follows On 4th August 1874 the pursuer sent to Granton station sixty-seven pigs, which were duly loaded by him in two trucks, and which were forwarded to Edinburgh in time for the train leaving Edinburgh at 5 p.m. The pigs were forwarded by that train, but the train broke down in the vicinity of Berwick, and so much delay was occasioned that the pigs did not arrive in Newcastle in time for the weekly market of the following morning.

The break down was, the pursuer alleged, the consequence of some imperfection or insufficiency in the engine, waggons, or rails, for which the Company were liable, and for the loss of market he claimed £18, 8s. 6d.

The pursuer pleaded—“The pursuer having incurred the loss of the sums sued for by and through the fault and negligence of the defenders, as above condescended on, the defenders are liable to him in compensation, and decree should be pronounced in terms of the summons.”

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The defenders inter alia pleaded—“(1) The pursuer's statements are not relevant or sufficient to support the conclusions of the summons. (2) The pursuer having taken delivery of the pigs without protest, is barred from making the present claim. (3) The defenders should be assoilzied, in respect—1. They were under no obligation, express or implied, to deliver the pursuer's pigs in time for the Newcastle market. 2. There was no unreasonable delay in the transit of the pigs.”

After a proof the Lord Ordinary, on 25th November 1874, pronounced the following interlocutor:—“The Lord Ordinary having heard counsel for the parties, &c.—Repels the defences, and decerns against the defenders in terms of the conclusions of the summons: Finds the defenders liable in expenses,” &c.

The following Opinion was given by Lord Young on the questions at issue:—

“The two claims presented for consideration, although of the same general character, differ in their details, and each of them is in some respects more, and in others less, favourable to the pursuer than the other. I have not found either free from difficulty, but on the whole, after the best consideration I have been able to give to the evidence and to the law applicable to the facts which I think established, I have arrived at the conclusion that the pursuer is entitled to succeed in both.

The general rule of law applicable to the case, and on which the pursuer relies, is not doubtful. It is that a common carrier is bound to receive goods tendered on him for carriage, and to forward them to (or towards, as the case may be) their destination, according to the means of conveyance which he professes to maintain, and according to the ordinary course of such conveyance, without any unreasonable delay in their dispatch, or detention by the way. In this case there is no question of the receipt of the goods by the carrier at Granton on a common contract to carry them to Newcastle, and there is, I think, no question that the duty to dispatch them without unreasonable delay, and to carry them without any undue detention by the way, thereby attached as matter of contract, This indeed, as a general proposition, was not contested by the defenders. They only disputed the pursuer's contention that, on the facts of this case it so operated as to subject them in liability. And indeed, when a rule of law cannot be stated with more certainty and precision than is compatible with the use of such expression as ‘reasonable dispatch,’ or ‘undue detention,’ it is to be expected that disputes under it will turn on its application or operation with reference to the facts of individual cases. These expressions, which the poverty of language or the nature of the subject renders unavoidable, or suggests as the best that can be employed, are themselves incapable of useful definition, and involve an appeal to the good sense and judgment of the jury or other tribunal which is called upon to determine particular cases.

The pursuer's first claim regards a lot of swine which he delivered to the defenders at Granton on 7th October 1872, in good time to be forwarded to Newcastle by the 6.45 p.m. train of that day. The pursuer had frequently sent pigs in the same way before during a period of several years, and the ordinary course of conveyance admittedly was, that the trucks containing the animals were dispatched by the train which left Granton at 6.45 p.m., joined the 8 p.m. train from Edinburgh at Portobello, and were thence conveyed by that train to Newcastle, arriving there next morning between 5 and 6 o'clock, in time for the morning market, which opens between 6 and 7 o'clock, On the particular occasion (7th October 1872), the train (with the pursuer's swine), which ought to have started from Granton at 6.45, was not dispatched till 8.15. It was accordingly too late to join the ordinary train at Portobello (the 8 p.m. train from Edinburgh), and the trucks with the swine being forwarded by a train later by several hours did not reach Newcastle till mid-day the following day, whereby the market was lost. The explanation of the unusual delay at Granton is, that there was no engine available to start the train at the proper time. It appears that a pilot engine was in use to be sent to Granton in time to leave again with the train at 6.45, but that on this occasion it did not arrive till about 8 o'clock. The reason suggested is, that it was the time of Falkirk Tryst, when the traffic on the line is always heavier than usual, and that thus it was, or might have been, impossible, with reference to the other traffic, to spare an engine sooner. The reason does not seem a good one in itself, and the evidence on the subject is of the most general description. I cannot hold that the extra traffic usual during a Falkirk Tryst is an admissible excuse for not sending an engine at the proper time to start a stated and ordinary train from Granton, by which the Railway Company had contracted to forward goods in the ordinary course of their business, and with reference to which the contract immediately in question was undoubtedly made. The defenders, however, urged that had the action been brought so as to enable the trial to take place nearer the time, they might have been able to assign a better or more precise reason, and to support it by better evidence, and claimed some indulgence by reason of the delay in bringing the action. I admit the validity of the topic, but am nevertheless unable to allow it such effect in the circumstances as to overcome the pursuer's case, which I regard as a strong one. I think it was according to the defenders' contract, and duty thence arising, to dispatch the pursuer's swine from Granton at 6.45, or at least in time to be forwarded from Portobello to Newcastle by the 8 p.m. train from Edinburgh. This was according to the regular course of their conveyance, of which the pursuer had much previous experience, and with reference to which the contract was made. Not having done so, or assigned any admissible excuse, and the pursuer having sustained actual damage in consequence, I am of opinion that he is entitled to compensation.

The pursuer's second claim is for alleged undue detention by the way of another lot of swine which he delivered to the defenders at Granton on 3d August last for carriage to Newcastle. The detention occurred on the line of the North-Eastern Railway Company, about six miles south of Berwick. It lasted about five hours and forty minutes, and the consequence was that the train (with the swine) arrived at Newcastle about six hours behind the proper time, and that the pursuer in consequence again lost the market. The cause was a break-down, occasioned by the front part of the train breaking away from the hind part, the couplings having given way. Four of the waggons immediately behind the point of breakage were thrown off the line that nearest to it (the property of the defenders)

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being thrown over the fence into an adjoining field, and so broken that it was impossible to tell by examination whether the break-down had been caused by any defect in it. The line was found to be in good order and unobstructed, and it was not suggested that any of the other waggons, or any of the equipments or arrangements of the train, were defective. Some defect in the defenders' waggon, which was so much broken as to preclude examination, or in its attachment to the preceding waggon, which was carried forward safely, is a probable cause of the accident, and the tendency of the evidence is to exclude any other. The question, on these facts, is, whether the defenders are liable to the pursuer for the damage occasioned to him by the detention.

The liability of a carrier for delay in the delivery of goods occasioned by an accident on the journey stands on a different footing from his liability for damage thereby done to the goods, the element of insurance which the contract of carriage implies extending only to the safety of the goods, which the carrier is thereby, as an insurer, bound to deliver in the like good condition as he received them, the acts of God or a public enemy only excepted. Therefore, although the defenders would have been (I think clearly) liable for the destruction of the pursuer's pigs by the accident in question, or any inferior damage to them, it does not follow that they are liable for the mere delay of delivery thereby occasioned. The case of passengers is more analogous; for with respect to them, even in the case of bodily injury, the liability of the carrier rests, not on implied insurance, but on his common-law duty, arising from the contract to carry safely in so far as that can be done by the employment of proper carriages, and the exercise of due care and foresight. Had a passenger, booked by the defenders from Granton to Newcastle, been killed or injured by a similar accident befalling the train in which he travelled, I think it not probable that the defenders would have escaped liability on the ground that the accident was not such as might have been avoided by ordinary care and foresight. But not to dwell on this analogy, and assuming that a case of personal injuries may involve, upon the question of liability, other considerations than apply to the detention of goods, however long, I think it is the law that a carrier is responsible for excessive delay in the delivery of goods, though occasioned by such an accident in the course of the transit as occurred here, unless it shall appear that it could not have been avoided by due and ordinary care on his part, or that of those for whom he is responsible on his contract. I say ‘excessive delay,’ meaning thereby to throw out of account such ordinary delays as, having regard to the length of the journey and character of the conveyance, it shall appear to be reasonable and according to the practice of life to allow for. Here, again, it is necessary to employ general language, and such as involves an appeal to the sense and judgment of the tribunals called on to consider the circumstances of individual cases.

Now, it does not appear to me to be running the matter fine, or encroaching on the time-margin which a railway company may reasonably claim in the running of their trains or the conduct of their traffic, to characterise a detention of about six hours beyond the ordinary time on a journey between Granton and Newcastle as prima facie undue or excessive, and therefore such as prima facie to infer liability for any actual damage thereby occasioned to a sender of goods. I should certainly not hold that a railway company, in the absence of express contract, were liable as on a guarantee of advertised or ordinary time for the disappointment (however injurious) of passengers or senders of goods whenever their trains were late. People who, from necessity or choice, run the matter so close that such delays as experience shows ought in common prudence to be allowed for, must bear the consequences of their disappointment unless the delay shall be excessive. But there must be a limit, whatever difficulty may attend the fixing of it, or in determining whether it has been transgressed in individual cases. In my opinion the delay of which the pursuer here complains transgressed due limit, and was excessive. I therefore think that it is incumbent on the Railway Company to account for it, and to show that it was owing to a cause which was unavoidable by ordinary care and foresight, or otherwise to be liable for the consequences. On the evidence, I am unable to hold that the defenders have so accounted for the delay complained of, and I am therefore of opinion that the pursuer is entitled to compensation for the damage which he sustained.

With respect to the amount of damages, I need only say that I think the sums claimed are reasonable, and fairly supported by the evidence.”

The Railway Company reclaimed.

Reclaimers' authorities— Finlay v. N. B. Ry. Co., 8 Macph. 959; Briton v. Gt. Western Ry. Co., 1858, 28 L. J. Exch. 51; Lord v. Midland Ry. Co., 1869, 2 L. R., C. P. 339; Macdonald v. Highland Ry. Co.; Taylor v. Gt. Western Ry. Co., 1 L. R., C. P. 385; Bird v. Gt. Western Ry. Co., 28 L. J., Exch. 3, Nov. 4, 1858; Kearney v. London and Brighton Ry. Co., 5 L. R., Q. B. 411, aff. in Exch; Lyon v. Lamb, June 22, 1838, 16 D.; Redhead v. Midland Railway Co., 4 L. R., Q. B. 379.

Respondent's authorities— Denton v. G. W. Ry. 25 L. J., Q. B. 129; Holcroft v. G. W. Ry., 21 L. J., Q. B. 178; Pickford v. Grand Junction Ry., April 27, 1844, 12 Mason 766; Dawson v. Manchester Ry. Jan. 15, 1862, 2 L. T. 682; M'Cauley, Dec. 9, 1846, 9 D. 245; Wren v. E. C. Ry., 1 L. J. (n. s.), Q. B. 5; Sharp v. Midland Ry., 14 L. T., Ex. 437; Shelford on Railways, i., 166; Blakemore v. L. and T. Ry., 1 Foster, 766; Bates v. Cameron, Dec. 6, 1855, 18 D. 186: Cohen, 3 Foster and Finlayson, 463; Anderson v. Pyper, 2 Murray 261; M'Glashan v. Dundee Ry., 13 D. 937; Snedden, 11 D. 1159.

At advising—