Scottish Court of Session Decisions

William Kelly, 73 George Street, Mile-End, Glasgow, brought an action in the Sheriff Court at Glasgow against the State Line Steamship Company, Limited, for £200 as damages for injuries sustained by him by the defenders' fault while he was passing along a quay where the defenders' steamship “State of Pennsylvania” was being loaded with stones and steel billets.

About 6 p.m. on 14th August 1889 the quay was occupied by stones and steel billets, which were being put on board the steamship in alternate loads. The billets were hoisted on board in two large buckets with handles, which weighed nearly a hundredweight each, and were kept rigid and upright by means of catches, which when released allowed the bucket to upset. These buckets were standing upon the quay while the stones were being shipped, one of them at least with its handle erect, although during the night and at meal hours the handles were lowered on to the ground. There was a passage about 3 feet wide between the billets and the edge of the quay. There was also a kind of passage through the middle of them, the use of which, however, involved some danger. There was a free passage at the back of the sheds. The pursuer, who was returning from an adjoining berth, and was not there on business, chose the passage through the billets, and as he passed the bucket with the upright handle he and the handle of the bucket fell simultaneously, and he sustained certain injuries. It was not clear what had caused the handle to fall, and whether he was struck by the handle or not. He alleged that he was, and that the cause of the accident was the faulty condition of the catch, which he had unwittingly released in his passage. He further averred that it was the defenders' duty to have seen that their machinery and plant was left on the quay breast in a sufficient and proper condition for the safety of the public using it.

After a proof the Sheriff-Substitute ( Lees) found that the pursuer had not proved that his injuries were due to any fault of the defenders, and assoilzied them accordingly. In his note he expressed his opinion that the statement by the pursuer that the handle fell upon him was untrue, and commented very strongly upon the unsatisfactory character of the pursuer's case.

The pursuer appealed to the Second Division of the Court of Session, and argued — That the quay was a public thoroughfare, and should be kept free from danger for those passing along it, and that the defenders were in fault in not keeping the passage clear, in having the billets there, in having a defective bucket, and in allowing the handle to remain upright while the bucket was not in use— Dakers v. Tharsis Sulphur and Copper Company, Limited, and Charles Tennant & Company, Limited, December 21, 1889, 27 S.L.R. 230.

The defenders argued—The case of Dakers was quite different. There the injured man was on his way to his ship, and the quay had been left in a dangerous condition and unlighted after working hours. Here the pursuer had no need to go that way at all. He might have chosen the street behind the sheds, or at least the safer passage by the edge of the quay. If he chose to climb over the billets, he did so at his own risk. The quay was being used for its legitimate and primary object of loading. The materials and the buckets properly occupied the quay at that time, and were a source of danger to no one who did not himself make them so.

At advising—