Scottish Court of Session Decisions

LORD PRESIDENT (Normand).—The reclaimer sues the owners of a motor omnibus in which she was a passenger for damages for personal injury. She was thrown off the rear platform of the omnibus by a sudden and violent swerve as it was approaching a stopping place where she intended to alight. The accident occurred on a dark night under black-out conditions. It is admitted that the reclaimer was in no way in fault. In her averments she specifically charged the driver of the omnibus with driving at an excessive speed. But this charge was held by the Lord Ordinary not to be established, and was given up by her counsel. They relied solely on the fact of the swerve of the omnibus to the offside as it approached the stopping place as prima facieevidence of the driver's negligence, and maintained that the onus of rebutting the inference of negligence lay on the defenders, and that they had failed to discharge it by competent evidence. The Lord Ordinary held that, though there was a prima facie inference of fault arising from the fact of the swerve, and that the defenders had the onus of rebutting it, they had discharged this onus by proving that the driver had swerved in order to avoid running down a pedestrian who ran across his path, and that his conduct had been free from negligence or fault. He therefore assoilzied the defenders.

The only eye-witness who spoke to a pedestrian crossing the path of the omnibus so as to create an emergency is the driver himself. The Lord Ordinary accepted his testimony as that of a credible witness, and says:

"I found no reason to doubt the veracity and accuracy of the driver, who impressed me as a careful and intelligent man, and gave his evidence clearly and without any apparent endeavour to colour or exaggerate his story."

But the Lord Ordinary applied the well known rule that by the law of Scotland the testimony of one witness, however credible, is not full proof of any ground of action or defence, either in a civil or criminal cause. He found corroboration, however, in the evidence of other witnesses. The reclaimer attacks the interlocutor on two grounds: (1) that the Lord Ordinary should not have believed the driver, and (2) that the other evidence was in part incompetent and, so far as competent, was insufficient corroboration. The

respondents supported the judgment of the Lord Ordinary on these two points, but they also presented an argument which would avoid at least some of the difficulties which arise on the evidence. Their contentions were (1) that the mere fact that the omnibus took a violent swerve gave rise to no inference of negligent driving, and (2), alternatively, that, if it did, the Lord Ordinary had overstated the onus which rested on them. All that was required of them, they maintained, was an explanation of the swerve, which need not amount to full legal proof.

I propose to examine first the contentions put forward by the respondents, because they are logically antecedent to the questions on the evidence raised by the reclaimer.

The respondents' counsel formulated their first contention in the proposition that an averment that the driver of the omnibus negligently caused or allowed the omnibus to swerve violently so as to throw the pursuer off the platform without negligence on her part would be irrelevant. I think that this is a critical and accurate test. In such an averment the word negligently would be held to contribute nothing to the bare averment of the fact which follows it. It is simply the shorthand method of pleading that the swerve gives rise to the inference of negligent driving. There can be no doubt that the driver of an omnibus owes a duty to the passengers to drive with reasonable care for their safety. If the omnibus is so driven that their safety is imperilled, they have, I think, a right to found on the peril so created and to treat it as evidence of a breach of the duty owed to them. I have already expressed an opinion to this effect in Mars v. Glasgow Corporation, where a sudden application of the brakes of a tramway car which put the passengers in peril was held by the Court to be prima facie evidence of negligence. In that case there was an admission that it was the driver's duty, whenever possible, to apply his brake in such a manner as to cause no dangerous disturbance of equilibrium to his passengers, and there is no corresponding admission in the present case. But I think the admission merely expresses the rule of law that the driver has a duty to avoid endangering the passengers, with the addition that one obvious way of endangering them is to stop so suddenly as to throw them off their balance. It is equally obvious that another way of endangering passengers is to cause the vehicle to swerve violently. But the driver of a vehicle owes a duty not only to the passengers, but also to pedestrians and other traffic on the roadway. These two duties may come into conflict when the driver is confronted with the choice between running down a pedestrian or colliding with another vehicle and risking injury to his passengers by a violent swerve or stop. In such a dilemma he is justified if he takes action to avoid the immediate and probably greater danger though at the risk of injuring his passengers. But it is reasonable that he or those who must answer for his conduct should have to

justify his action to them if they are in fact injured. The facts are, or ought to be, within his knowledge, whereas the passengers have no duty to know them, and generally know nothing of them. Wing v. London General Omnibus Co . was cited for the respondents. In that case an omnibus skidded on a greasy road and ran into an electric standard and injured the plaintiff. The jury had found that the defendants had been negligent in sending out the omnibus on greasy roads. The question whether the driver had been negligent did not go to the jury, for it was assumed that a motor omnibus might skid without the driver's fault. The Court of Appeal held that there was no evidence that the defendants committed a nuisance in sending out the omnibus when the roads were greasy. The case is, therefore, different from the present. But certain observations of Fletcher Moulton, L.J., dealt with the question whether the mere occurrence of an accident is evidence of faulty driving. He says (at p. 664):

"Every vehicle has to adapt its own behaviour to the behaviour of other persons using the road, and over their action those in charge of the vehicle have no control. Hence the fact that an accident has happened either to or through a particular vehicle is by itself no evidence that the fault, if any, which led to it was committed by those in charge of that vehicle. Exceptional cases may occur in which the peculiar nature of the accident may throw light upon the question on whom the responsibility lies, but there is nothing of that kind here. The collision with the electric standard was due to the omnibus skidding, and, if we are to give any weight to the admissions made by the defendants' servants which were proved in evidence in, chief as part of the plaintiff's case, that skidding was due to difficulties in avoiding other vehicles."

I agree that the mere occurrence of an accident between two vehicles or between a vehicle and a pedestrian on the roadway throws no light on the question who was responsible; and I agree that, if the cause of an accident is admitted or proved to be a skid and if it is also admitted or proved that a skid may occur without negligence, the occurrence of an accident is no evidence of negligence. But I do not agree that a violent swerve, caused by the voluntary movement of the steering wheel in the hands of the driver, is not evidence of his negligence in a question with an injured passenger or with a pedestrian injured on the footpath. It is only prima facie evidence, and it will have no effect if it is explained and justified; but the proper person to explain and justify a voluntary act is the man who acts. I think that this view is in accordance with the law laid down in many cases both in our Courts and in the Courts of England, though not all of the cases in our Courts have been reported.

The next question is whether the Lord Ordinary has put too heavy an onus on the respondents by requiring that the explanation or justification shall be established by full legal proof. On this point the respondents rely on the dicta of Lord Dunedin in Ballard v. North British Railway Co. Lord Dunedin discusses the various cases in

which it is said res ipsa loquitur. He points out that in certain cases the mere fact of the accident is relevant to infer negligence, and says that the Lord Ordinary went too far when he said "that there is then raised a presumption of negligence which the defender has got to rebut." He draws a distinction between "relevant to infer" and "necessarily infers," and says that, where the accident is relevant to infer negligence, "if the defenders can show a way in which the accident may have occurred without negligence, the cogency of the fact of the accident by itself disappears," and he subsequently contrasts the "explanation " which he desiderates with "proof." The respondents wish to use these dicta to support the view that it is enough for them to tender on record or in evidence an explanation, not amounting to legal proof, that the swerve in this case was caused by the necessity of avoiding collision with a pedestrian. In my view this is not warranted by what Lord Dunedin said. But before coming to that it is necessary to point out that Lord Dunedin was dissenting. The majority of their Lordships held that the railway company was liable for the accident, which was caused by the breaking of a link between an engine and wagons which it was pushing up a hill and over a crest. They held that the wagons were sent over the crest at too great a speed, and that the driver was in fault in this respect. The consequence was that, when the wagons reached the crest and the engine driver tried to stop them by engine power from going down the other side, the strain put on the link which broke was too great. There was a latent defect in the broken link, and there was no fault in failing to discover the defect. But it was held that the system of working subjected the link to an excessive strain. In reaching a decision Lord Finlay expressly relies on the occurrence of the accident (at p. 52) as casting upon the railway company the burden of proving that it happened without fault on their part. Lord Shaw refers to the Lord Ordinary's opinion, which, he says, gave to the expression res ipsa loquitur its own place and no more. Lord Dunedin's observations cannot, therefore, be treated as if they stood alone, and I desire to say, with respect, that I prefer the clearer discussion of res ipsa loquitur which is to be found in Lord Shaw's speech. Nevertheless, I think that what Lord Dunedin had in view was a necessary safeguard in applying the expression res ipsa loquitur as if it expressed a legal presumption. Lord Shaw pointed out that it is not a legal principle. It is merely a presumption of fact, and its force depends on the facts in each case. Now there are cases where an accident happens through:some object falling or breaking when no one is present and in actual physical control of the object at the time. In the part of Lord Dunedin's speech on which the respondents rely he mentions Scott v. The London and St Katherine Docks Co . where a bag of flour fell from a warehouse though it was not actually being handled by anyone at the time, and Milne v. Townsend, where a strap of a derrick crane broke, causing the derrick to fall when there was no load on it. In

these cases there was no question of the negligence of some person actually working the derrick or handling the bags. And in such cases those who were responsible, as having control of the premises or derrick, in Lord Dunedin's view might escape liability if they could put forward an explanation, short of full legal proof, showing that the accident might have occurred without their negligence. I think that Lord Dunedin did not mean that nothing need be proved, but only that the proof need not establish that the accident was in fact caused in a particular way which excluded negligence. It would be sufficient if it were proved that there were conditions present which might have caused the accident without negligence on their part. To take an illustration; in Scott v. The London and St Katherine Docks Co. if the defendants had proved that there had been an explosion in neighbouring premises which might have disturbed the sack, that might have discharged the onus on them, though they had not proved that the explosion was in fact the cause of the sack's falling from their building. In Ballard Lord Dunedin did not base his judgment on something short of legal proof, although he expressly treated the case as one "where the circumstances warrant the view that the fact of the accident is relevant to infer negligence." He held it proved that the speed of the train of wagons was not excessive, which excluded a ground of negligence specifically pleaded against the engine-driver, and he also held it proved that the link which broke did so because of a latent defect not discoverable by any ordinary examination. Then he asks, Where then is the negligence? and he answers, There is none except such as may be inferred from the mere fact of the accident. Finally he held that there was no fault in trusting that the train could be held in check on the gradient by the couplings. I cannot find that Lord Dunedin. at any stage of the case relied on an explanation short of full legal proof. The present case is not similar to cases like Scott or Milne.If this were a case in which the omnibus swerved and it was discovered that the steering gear had broken through a latent defect, there would. have been a similarity to Ballard, as Lord Dunedin saw it. In the circumstances figured the swerve of the omnibus would have given rise to no inference of negligence against the driver, for the defect of the steering gear would have been adequate to explain it, though it would still have been open to the pursuer to prove that the driver had so mismanaged things that even sound steering gear would have broken, and that it was his fault rather than defective steering gear which caused the accident. But the defenders would never have shifted the onus back to the pursuer except by legal proof that the steering gear was in fact broken and that it was defective. It would have been quite useless for them to say either through the mouth of counsel or through the mouth of a witness that the accident could be accounted for by latent defect causing a break of the steering gear, unless there had been proof that the necessary conditions were present.

In my view, therefore, Lord Dunedin's observations should be limited to these cases where the starting point of the action is some accident not immediately brought about by voluntary human action; and they do not suggest that no proof at all is required, but only that, if the conditions are proved which are adequate to account for the accident, the onus is discharged, though there is no proof that these conditions rather than some antecedent mismanagement of the defenders actually caused it. In the present case it is just and in accordance with the views both of Lord Dunedin and of the other learned and noble Lords who took part in the decision of Ballard that a driver whose voluntary action is challenged should explain and justify by legal proof a swerve caused or allowed to take place by him. This proposition also is in accordance with the views expressed by the Court in Mars.

I therefore agree with the manner in which the Lord Ordinary dealt with the onus in the case, and I turn to the reclaimer's criticism of his opinion on the evidence adduced. The driver's evidence is fairly and accurately summarised by the Lord Ordinary, and I do not repeat his narrative of it. The criticisms which the reclaimer's counsel made upon it failed to satisfy me that the Lord Ordinary's judgment on its credibility was open to attack. The chief point taken was that the witness in examination-in-chief placed the pedestrian at a distance of some 2 to 3 yards from the omnibus, while in cross-examination he gave certain positions which, as measured, would make the distance some 24 feet. Such a discrepancy seems to be of small importance when it is remembered that the accident took place in the black-out and that the lights of the omnibus, restricted according to the regulations, only showed about 25 feet in front. The Lord Ordinary believed the driver's testimony that he saw the pedestrian so close that a swerve was necessary to avoid running him down, and such criticisms as were made of his evidence are insufficient to entitle a Court of appeal to reverse the Lord Ordinary on this point.

The next question is whether there is sufficient legal corroboration of the driver's evidence. Corroboration may be by facts and circumstances proved by other evidence than that of the single witness who is to be corroborated. There is sufficient corroboration if the facts and circumstances proved are not only consistent with the evidence of the single witness, but more consistent with it than with any competing account of the events spoken to by him. Accordingly, if the facts and circumstances proved by other witnesses fit in to his narrative so as to make it the most probable account of the events, the requirements of legal proof are satisfied. In the present case there is a question whether certain evidence was admissible. But apart from that evidence there is other evidence of facts and circumstances, and the respondents rely on these as sufficient without resort to the disputed evidence, while maintaining that it also was competent evidence. It is proved by evidence of witnesses other than the driver, the competence of which

is not in doubt, that the conductress gave a bell signal to the driver as the omnibus came towards the stopping place indicating that he was to halt there, and that the driver responded by slowing his speed and inclining towards the stopping place. After that the omnibus took the swerve in the opposite direction. Immediately after the accident the conductress again rang her bell for an emergency stop, and the omnibus at once stopped. Besides these facts it is also proved that after the driver had helped the reclaimer into a neighbouring shop, there was a man standing beside the door of the omnibus and that the driver spoke to him and challenged him with being the man who had run across his path. This man handed to the conductress a piece of paper with an address on it. The sequence of events seems to me to afford sufficient corroboration of the driver's story. The movements of the omnibus correspond with his account of his speed and steering. His response to bell signals shows that he was alert and minding his business. The swerve is no longer an isolated incident, it has a setting which points to the probability of the driver's evidence that it was a change of direction, opposite to the direction in which he was deliberately going, forced upon him by an emergency. This is much more probable than that it was a casual, one might say inexplicable, act of negligence. The choice is between a story into which details spoken to by other witnesses fit naturally and convincingly, and an inference arising from one movement isolated from the preceding and subsequent movements of the omnibus, all of which are indicative of careful driving. There is, therefore, in my opinion, evidence from independent sources which in law is corroborative of the driver's testimony, and which is, in the absence of any contradiction by competent evidence, sufficient corroboration. I have not treated the evidence that the driver challenged a man standing beside the omnibus as corroboration. I regard that evidence and the evidence that the driver told the conductress that he had been forced to swerve by a pedestrian who crossed his path as evidence tending to accredit the driver, because both incidents show that he has consistently given the same account of the accident. But his own repetition of his story does not corroborate it. On the other hand, the fact that there was present a pedestrian there who might have run across from the other side in front of the omnibus is some corroboration, but it is so slight that by itself it would not be of importance. The fact that this man, on being charged with having embarrassed the driver by crossing in front of the omnibus, gave his name and address is much more significant, but in my opinion, it belongs to the next chapter in the case.

The Lord Ordinary, in coming to the conclusion that the driver was sufficiently corroborated, relied on certain evidence, some of which is hearsay, which he held to be admissible as part of the res gestce. The Lord Ordinary distinguishes two incidents. The first, which is spoken to by the conductress and by the driver, took place immediately after they had attended to the reclaimer and helped her into a shop. The driver spoke to a man standing by the omnibus and, according

to his own statement, challenged him with being the man who had crossed in front. He brought the man to the conductress, and she says that in her hearing he admitted, in reply to the driver, having crossed in front of the omnibus, and he handed over to her a paper with his name and address. The handing over of the paper in these circumstances comes near to an admission by actings. The verbal admission, which rests on hearsay, then makes it definitely the action of a man who is not supplying the name and address of a witness but supplying his name and address as the agent responsible for bringing about the accident. There is a question whether the verbal admission was that he ran across in front of the omnibus or merely that he crossed in front of it. My view, after studying the evidence, is that it may quite fairly be taken that the conductress at least understood him to admit running. The other incident took place a little later. The paper with the address was handed over to police-constable M'Leod about ten minutes after the accident. He went at once to the Empire Picture House, which is close to the scene of the accident, and there he interviewed a man whose name he had reason to believe was Hyndman. This man told the constable that he had crossed the road but was not in the way of the omnibus, and on arriving at the other side of the road he had seen a girl fall off the omnibus. Efforts have been made to trace the man but they have failed, and he was not adduced as a witness.

The first incident, but not the second, was held by the Lord Ordinary to be part of the res gestce, and the reclaimer takes exception to this ruling. The Lord Ordinary relied not only on the action of handing over a paper with the name and address, but on the verbal admission, holding that the significance of the action could not be properly assessed without the conversation which led up to it. The question whether he rightly treated the evidence as admissible may, therefore, be considered from the point of view of the admissibility of hearsay evidence.

The principle on which evidence of res gestce, including hearsay evidence, is admitted is that words and events may be so clearly inter-related that the truth can only be discovered when the words accompanying the events are disclosed. But it is not essential that the words should be absolutely contemporaneous with the events (see e.g., A. B. v. C. D .). What is essential is that there should be close association, and that the words sought to be proved by hearsay should be at least de recenti and not after an interval which would allow time for reflection and for concocting a story. So a long narrative is never allowed to be proved as part of the res gestce. In most of the cases which are reported the words which were allowed to be proved by hearsay evidence were uttered by the party injured or by the party accused in a criminal case. But the words and exclamations of by standers whose evidence cannot be obtained is also admissible, Ewing v. Earl of Mar . In Longworth v. Yelverton, Lord Ardmillan allowed

the statements of the pursuer, who was herself not a competent witness, to be proved by other witnesses as part of the res gestce. He lays down the principle that, when any particular statements are so connected with acts or facts given in evidence that the dissociation of the statements from the acts or facts to which they relate would frustrate the ends of justice and impede the discovery of truth, then that dissociation is prevented, the statements are treated as partes rei gestce, and, on that ground, are viewed as within the exception to the rule (against hearsay) and are admitted accordingly. It is often a matter of nice discrimination and of sound discretion whether in particular circumstances this exception from the general rule that the best evidence must be brought should be allowed, for it is extremely difficult, if not impossible, to formulate a general rule for its application (Dickson on Evidence, Grierson's ed., section 254).

In the present case the evidence founded on by the Lord Ordinary as part of the res gestce relates to an incident which occurred at the place where the accident happened. It took place very shortly after the accident, and as soon as the driver and conductress had performed their first duty of attending to the injured party. The accident must still have left a vivid impression on the minds of all who took part in the incident. The reclaimer represents the incident as not clearly associated with the actual occurrence of the accident, but as the opening of a new chapter—the inquiry into the causation of the accident. I doubt if it is necessary or possible to divide events so closely related in time, place, and circumstances in this fashion into chapters, and I am disposed to answer that the incident was clearly associated with the actual occurrence, and that it became the starting-point of the inquiry into its causation. The Lord Ordinary's opinion is that the incident was so clearly bound up with the happening of the accident that without it the history of the accident as offered to the Court in evidence would not be complete. That seems to me to state as clearly as it can be stated the ground for allowing evidence as part of the res gestce, and the only question is whether there is any sufficient reason for our interfering with the Lord Ordinary's application of it to the circumstances. I am of opinion that the Lord Ordinary has exercised his discretion in a manner which does not justify us in interfering. Moreover, I think that I should have done as he has done, and that I would have held the evidence to be admissible.

The incident at the Empire Picture House seems to me to be dissociated from the accident. Police inquiries had begun, and anyone interviewed by the police might well be on his guard. There is, however a difficulty of a rather special kind which has not had to be considered in any reported case and probably very seldom arises. This incident is de recenti of the accident and of the earlier incident which has been held to be part of the res gestce, and it introduces a qualification of the admission there made. The reclaimer represents that it would be quite unfair to admit evidence of an admission without admitting evidence of a de recenti qualification of it, and that the qualification,

even if it is not admissible as part of the res gestce, is yet so clearly related to the res gestce that it cannot justly be ignored. The respondents did not contest this. I think that in all cases where hearsay evidence is admitted, so that we obtain at second hand the unsworn evidence of someone who is not adduced as a witness and cannot be cross-examined, the Court has a duty to consider its value most carefully, otherwise such evidence would be far from an aid to the discovery of truth. Logically the evidence about the second incident should have been ruled incompetent and would then not have been elicited. But in view of the attitude of parties it seems to me that in these exceptional circumstances we should take the admission made at the first incident as merely an admission that the man who made it crossed the course of the omnibus, but not as an admission that he crossed it near enough to cause an emergency. In that form it puts in issue, not the actual distance at which he crossed, but whether a reasonable and prudent driver of ordinary skill had good ground for the action which he took. The lighting conditions are here important. There was no street lighting and the lights on the omnibus were only effective for a short distance—some 8 yards. If within a distance of that sort and in these lighting conditions the driver saw a figure crossing his path and took the view that he must swerve to avoid it, I think it would be impossible to say that his conduct was unreasonable or negligent. It would be difficult to estimate the distance accurately and foolhardy to proceed on the basis merely of an estimate of distance which might give sufficient space to draw up without swerving if it were correct, but might also cause death if it were not correct.

My view on the case is that there is sufficient corroboration of the driver's story without recourse to the evidence of the incident which took place after the reclaimer was helped into the shop, but that the evidence relating to that incident is admissible and affords additional corroboration even when an indulgent allowance is made for a qualification of the admission then given by evidence which strictly is inadmissible.

I therefore move your Lordships to refuse the motion, and to affirm the Lord Ordinary's interlocutor.

LORD FLE1MING .—I am of the same opinion. It is unnecessary to recapitulate the facts of the case, as I agree with the narrative of them given by the Lord Ordinary and I also unreservedly accept his view that the driver of the omnibus was a credible witness. I therefore propose to confine my remarks mainly to the legal aspects of the case.

The pursuer is entitled to claim that as the result of the proof it has been either admitted or established by evidence that, at a time when she was taking due care for her own safety, the driver of the omnibus, without any warning to the passengers, caused it to make a violent or jerky swerve which threw her off the omnibus, with the result that she sustained serious injuries. The question of whether the maxim res ipsa loquitur applies to such a state of matters was discussed in the course of the argument. I do not think it is necessary to examine closely the exact scope of that maxim, but I respectfully agree with the view expressed by Lord Shaw upon that matter in his speech in Ballard v. North British Railway Co ., and I am of opinion that it means little more than its English equivalent, "a thing tells its own story."

In the present case the first question to be considered is, What is the proper inference to be drawn from the facts above set forth? In my opinion it is that the driver of the omnibus was in fault in causing the omnibus to make a violent swerve which inflicted personal injury on a passenger who was taking due care of her own safety. But though such a swerve, assuming nothing else is proved, is sufficient to infer negligence on the part of the driver of a motor vehicle, it may be justified by some emergency, and may be shown to be consistent with there being no fault on the driver's part. It may, indeed, be a skilful piece of driving, which was necessary in the interest of the passengers and of other persons. The admission or proof of a violent swerve taken by itself may be properly termed either prima facie or presumptive proof of negligence. Like all other presumptions of fact it may be rebutted, and the question is here raised of whether it can be rebutted by the defenders merely putting forward but not necessarily establishing by legal evidence an explanation of the facts relied upon by the pursuer which is consistent with there being no fault on the part of the driver. It was argued for the defenders that the driver having given evidence, which was accepted by the Lord Ordinary as credible, to the effect that the swerve was rendered necessary owing to a pedestrian running in front of the omnibus, the presumption in favour of the pursuer had been thereby rebutted. I am unable to understand, however, how a presumption can be rebutted by a piece of evidence which, though believed, is not in law sufficient to establish any fact, and, unless legal corroboration can be found of the driver's story, that is the position of his evidence. The presumption in favour of the pursuer arises only on admission or proof of the dangerous swerve, and, in my opinion, can be rebutted only by proof or admission of some fact which justifies or excuses the swerve. I do not find it necessary to pursue this topic farther, because, so far at least as this Court is concerned, the matter, in my opinion, is foreclosed by the analogous case of Mars. In that case a presumption in favour of the pursuer was created by a sudden stoppage of a tramway car, but it seems obvious that in this matter no distinction can be drawn between a stop and a swerve. It was suggested that the authority of Mars was lessened by the fact that the defenders in that case gave an admission of their liability which went too far. The terms of the admission maybe open to criticism, but it appears to me that when analysed the criticism is found to be to a large extent merely verbal. But however that may be, the admission does not appear to affect the reasoning on which the judgments were based.

The defenders' counsel relied upon Lord Dunedin's judgment in Ballard's case. I do not think we can leave out of account that his Lordship's judgment was a dissenting one. He disagreed with a majority of the noble Lords who took part in the judgment as regards the facts of the case, and I feel bound to say I do not feel satisfied that the view which he expressed with regard to the law was shared by the majority or even by the Lord Chancellor, who along with Lord Dunedin formed the minority. In the course of his speech the Lord Chancellor refers to the oft-quoted dictum of Earle, C.J., in Scott v. The London and St Katherine Docks Co ., and then proceeds (at p. 48):

"Where an explanation is tendered—in this case the breaking of the defective link—the observations lose their importance, and the only question to be determined is whether the explanation is true and sufficient."

I note that the question is, Is the explanation true as well as sufficient? I am unable to regard Lord Dunedin's judgment as an authority for the view that in a case like the present it is sufficient for the defender to tender a possible explanation of the occurrence which is consistent with there being no fault on his part. I am, accordingly, of opinion that the defence must fail unless. it can be shown that there was legal corroboration of the driver's evidence.

Confining myself for the moment to evidence the competency of which is not in dispute, I arrive at the conclusion that there is. Apart from the driver's own evidence, there is reliable testimony to the effect that the speed of the omnibus was not excessive, that the driver gave prompt attention to the bell signals both before and after the accident, that he was inclining towards the stopping place on his own side of the road and slowing down preparatory to stopping. These facts seem to me to present a picture of a driver who is carefully attending to his duties, and renders highly improbable the idea that there was an unnecessary and purposeless swerve. When taken in conjunction with the violent and jerky character of the swerve they seem to me to suggest that the driver unexpectedly found himself faced with an obstacle at a short distance in front of him and found it necessary to make a violent swerve to prevent a collision. The circumstances described by the independent witnesses fit in with the whole story as told by the driver much better than with the idea that there was a negligent and unintelligible swerve away from the side of the road for which he was making. They are much more consistent with the driver's version of the occurrence than with any other explantion, and confirm it to such an extent as, in my opinion, to furnish legal corroboration of it. It may be noted that the driver's account of the occurrence is also consistent with his attitude after the accident, but I do not think that this constitutes legal corroboration of his evidence, and I, therefore, do not base my judgment upon it.

If this view is right, it is unnecessary to consider whether the admission said to have been made both by word and deed by the man

Hyndman can be regarded as part of the res gestce, and so as being admissible as evidence; but as this matter was fully discussed, it is proper that we should express our opinion upon it. According to the evidence of the conductress—and I take her whole evidence as given in chief, cross, and re-examinationthe man Hyndman admitted to her or in her presence that he ran in front of the omnibus. The handing over by him to the conductress of the piece of paper which had his name and address on it goes to confirm this verbal admission. The event with which we are here concerned is the happening of an accident, but to my thinking it is too strict a view to take to say that the event ceased when the omnibus stopped. In order to constitute res gestce, statements and declarations must be made de recenti, but they need not be contemporaneous. Obviously statements made after there has been time for deliberation are not likely to be entirely spontaneous, and may, indeed, be made for the express purpose of concealing the truth. The Lord Ordinary has taken the view that the statements made by Hyndman had sufficient association with the event to render them competent evidence, and I am not prepared to differ from that opinion. They were made when he was still present at the locus of the accident, and, so far as appears from the evidence, nothing happened as regards him in the short interval that elapsed to justify us in saying that the chain of connection between him and the accident had been broken. His statements cannot, I think, be fairly considered to be merely a narrative of a past occurrence, but rather as an incident of the event which is under consideration. For these reasons I am of opinion that the statements made by Hyndman are additional corroboration of the driver's testimony.

The pursuer, however, maintained that, if Hyndman's statements to the driver and conductress were competent evidence, his subsequent statement made to the policeman in the picture house must also be received as evidence. Now, if the statement made to the policeman in the picture house stood alone, I do not think it could be regarded as competent evidence. It was not made at the locus of the accident, and was made in response to inquiries by the policeman. None of the other persons concerned in the happening of the accident was present. But the purpose of admitting statements as res gestce is to further the ends of justice by admitting as evidence statements which from their close association with the event being inquired into may help to give a true picture of it, and I think the view may be taken in this case that it would be unfair to the pursuer and unjust if we were to shut out a statement which appears to be a qualification of the statement which Hyndman made ten minutes earlier and which ex hypothesi is admissible evidence. But in my opinion it makes no difference in the result. I prefer the earlier statement given to the conductress, which implies that he was to blame for the occurrence, to his later statement made to the policeman, in which he appears to retract his former statement and to suggest that he was not in any way to blame. I, therefore, agree that the judgment of the Lord Ordinary should be affirmed.

LORD MONCRIEFF .I am also of opinion that the reclaiming motion should be refused.

Notwithstanding the fact that a fare-paying passenger in a public vehicle has sustained injuries as the result of having been thrown without fault on her part from the vehicle on to the road and that she is moreover able to aver and prove that her loss of balance was occasioned by some jerk or sudden stop or swing which bad interrupted the driving of the vehicle, the driver of the vehicle may none the less escape liability as for negligence if he succeeds in dissociating the event from such negligence by establishing that the irregularity in his driving had taken place in circumstances which should be accepted as indicating, notwithstanding the sudden alteration of course or speed, that he had nevertheless been driving with reasonable care and skill. Failing, however, any tender by the driver of such counter-averment and counter-proof, he will find himself charged (and charged conclusively) with negligence in driving, as a direct and proper consequence of the positive irregularity in driving which the pursuer has demonstrated and which he has failed to justify. Until issue has been joined, how even, and proof, so far as requisite, has been taken, the fault in driving charged by the pursuer is, of course, only prima facie evidence of negligence. In this respect such a particular charge of negligence in driving is, however, exactly in the same position as many other charges of negligenceas, for example, a charge of negligence as falling to be inferred from driving on to the pavement or, to pass from traffic cases, from having provided defective plant. It has not hitherto been doubted that a charge of negligence in respect of defective plant is relevant upon averment and conclusive after proof, although it is always open to be met, upon counter-averment and counter-proof, by a defence of latent defect—(see The Merchant Prince).

If such a single averment of negligence should in any such case be admitted by the defender and damages be adjusted, the pursuer would, in my opinion, be entitled to decree de piano. It was argued for the respondents that, in such a state of the pleadings, the defender would, on the contrary, be entitled to have the averment of negligence held to be irrelevant and the action dismissed. For the reasons I have given I do not hesitate to reject this argument. This argument is, moreover directly inconsistent with the proposition which formed the. basis, and indeed entered into the substance, of the decision in the case of Mars v. Glasgow Corporation . I see no reason, nor would this Court

be entitled, to reconsider that decision; nor can I accept the suggestion that the two cases can be distinguished. It is true that, in the case of

Mars, the defenders made admissions which were construed as amounting to an admission of fault; but now that the fault in driving charged by the pursuer in the present case has been proved by evidence, the circumstance of,the admission becomes at most a distinction without a difference.

For the purposes of relevancy I, accordingly, regard a charge of negligence in respect of a sudden interruption of course or speed in driving a vehicle with resulting injury as merely a typical example of an averment of negligence. Such a question of relevancy can readily be solved by an application of the general law and practice in eases of negligence. In dealing, with any such question of negligence in conduct, I would, on the other hand, regard it as entirely misleading to have resort to the doctrine which is applied in cases which require to be solved by admitting real evidence as introduced in terms of the maxim res ipsa loquitur. Such latter cases ought, in my opinion, to be confined to cases analogous to the case of Scott v. The London and St Katherine Docks Co . in which the maxim was first formulated and applied. The characteristic of such cases is, or in my opinion ought to be, that the action or conduct which is charged as negligent has not been open to observation by witnesses, and so must be spoken to by according a voice to the subsequent event itself. The maxim applies in a case in which a position of apparent stability has been disturbed without the intervention of personal activities which are open to observation as regards negligence on the one hand or diligence on the other. In such a case it is only proper to permit the event itself to tell any story it can tell as to the negligence or diligence of such antecedent activities as may have been directed to create the misleading stability disturbed by the event. Where, on the other hand, the driver of a vehicle is charged with a fault in driving, the question of fault will no doubt depend (as in all other cases of conduct) on what in fact he did and how in fact he acted; but in such a case the question of conduct must be determined upon the record of contemporary observation, and not upon a bare inference to be voiced as an item of real evidence by the event. I remain of the opinion upon this question which I expressed in the very recent case of Mars.

So standing the case, I am of opinion that the defenders' counteraverment in answer 2, which purports to disclose the traffic problem with which their driver was faced when Hyndman ran across the road. (while most unsatisfactory in point of pleading as being accompanied neither by a claim of fault on the part of Hyndman nor by a positive plea in law), was just sufficient in the absence of challenge by counsel for the pursuer, and notwithstanding the requirements of the decision in the case of "Vitruvia" S.S. Co. v. Ropner Shipping Co ., to admit the evidence they were permitted to lead in support of their defence. Apart altogether from reliance on Hyndman's alleged admission of fault or from any resort to the doctrine of res gestce, I moreover agree with your Lordship in holding that this defence has been established. I accept the driver as a credible witness, and see no reason why a sudden swerve on the road which, in the absence of a context, would per se afford evidence of negligence, may not, on further evidence as to the occasion

and setting of the swerve, become available to the defenders as itself evidence pro tanto in support of the defence. If only for that reason I would deprecate any resort in the present case to the doctrine of Central res ipsa. I regard the sudden swerve towards the right of the omnibus in the present case, when viewed in relation to the course of driving which had immediately preceded and which immediately followed it, as being not only consistent with the driver's evidence (although not, of course, alone consistent with it seeing that it would equally have consisted with a failure of the steering gear), but as being moreover inconsistent with the inadvertence and negligence which is charged against him. I further regard his subsequent challenge of the bystander (seeing that the challenge is a substantive fact, and not a mere statement of which the truth again depends upon this single testimony) as an action on the part of the driver which is available to corroborate, and not merely to accredit, his evidence, and which again is inconsistent with an inadvertent and purposeless swerve.

In these narrated circumstances I find sufficient corroboration of the evidence given by the driver as a single witness; but I desire to say that I would not have found the corroboration sufficient had I regarded the circumstances as consistent with either view, even if they should be more readily adjusted to the one view than to the other. While I entirely accept the limitations of the requirements of legal proof as formulated by Lord Wright in the case of Grant v. Australian Knitting Mills Limited, I would nevertheless regard a circumstance which should alike be consistent with each of two conflicting stories as being unavailing to corroborate either one of them. In holding that the driver's evidence is sufficiently corroborated, I thus do not require to rely on the hearsay evidence as to the statement reported to have been made by the bystander Hyndman. In my opinion that evidence was both inconclusive and incompetent. Taking the whole evidence together (which, as regards a statement by an absentee, is a requisite which outweighs any merely technical objection such as the intervention of the police), I do not find that the bystander is proved to have admitted having interfered with the course of the driving of the omnibus. Had I regarded the evidence as sufficient to prove that such an admission in fact had been made, I would, on the other hand, have held that any such hearsay evidence of the terms of the statement was incompetent.

In considering whether a statement so forms part of an event as to become open to be proved as hearsay under what is styled the doctrine of res gestce, I take the view that "the event," or res gestce, of which the statement must form part, will necessarily vary as regards its commencement and termination with the share in the event which is taken by the person who is reported to have made the statement. It appears to me to be only on this view that a statement can in any case be regarded under this doctrine as an item of real evidence. Unless

words be uttered by an actor as part of his action, they cease to be part of "an event" and become merely a statement.

In the case of any composite action of which words are to form part, this will necessarily vary in its ambit, and in its influence towards introducing the testimony of words, as such an action may find itself severally partaken among the various individuals who take part in it. Thus, in the present case, it might "frustrate the ends of justice" (in the words of Lord Ardmillan in Longworth v. Yelverton ) if statements made by the driver of the omnibus were dissociated from "the event," as that event might be found to have commenced with the swerve and to have terminated when he drove away. Again, in the case of the victim, "the event" might readily be taken as extending even to a change of scene, so as, for example, to introduce statements made after recovery of consciousness in an infirmary. Such a view might perhaps explain the decision in the case of A. B. v. C. D .,although Mr Dickson regards that case as a narrow one, and the decision was arrived at after an equal division of opinion among the four judges who dealt with it in the. Outer and the Inner House. In the case of the absentee bystander Hyndman, on the other hand, "the event" must, in my opinion, be regarded as having terminated with his escape from the omnibus (if this in fact occurred) and with his arrival on the pavement. Thereafter he can only be regarded as an onlooker, who may have continued to be curious. but was no longer concerned, and as one who had moreover been afforded an ample opportunity for tutoring himself as to what he should say. Nothing which he may have said after the return of the driver from his errand of mercy is required to explain any event which may have happened, or any evidence as to any such event; nor, is any such statement by him related, in his case at least, to any disturbance occasioned by the event (Barr v. Barr ). Any such statement, in contrast with an exclamation forced out of a witness by the emotion generated by an event, is, in my opinion, a statement only; and does not become an item of real evidence under any legitimate application of the doctrine of res gestce. Viewing the case as I do, however, the competency of this evidence raises merely a supplementary question which does not require a closer examination of this exceptional practice authorising the admission of hearsay evidence.R

While I am thus not wholly at one with the Lord Ordinary in his treatment of the evidence, I agree in the result at which he has arrived, and concur in holding that his interlocutor should be affirmed.

LORD CARMONT .—There are some points of general importance raised in this case, and I venture to add a few remarks to the full consideration already given by your Lordships.

The brocard res ipsa loquitur, as it seems to me, is a mere facet of the laws of evidence—one of the exceptions to the leading principle

contained in the maxim ei qui a flrmat, non ei qui negat, incumbit probatio.

Proof that an accident has happened, the cause of which is unknown, is normally not evidence of anyone's negligence. But the mere fact that an accident has happened may in certain circumstances be prima facie evidence of negligence which puts upon the party charged with it the burden of proving that be is not blameworthy. The fall of a bag of sugar or a barrel from a warehouse window on a passer-by in the street, when proved, presents a prima facie case of negligence, because, it has been said, those who have charge of inanimate objects do not ordinarily allow them to fall from windows when they use care, and so the burden is shifted on to the shoulders of the custodier to clear himself. Similarly the captain of a vessel under way, when he collides with a ship at anchor in daylight, finds himself placed under a burden to clear himself from blame. The happening of the collision is deemed prima facie evidence of negligence.

So too where two trains of the same company collide, the burden of proving that an accident to a passenger on one of the trains was not due to their servants' negligence falls on the company. These cases are referred to by Broome in his treatise on Legal Maxims, but they do not indicate the limits of the scope of what is referred to as res ipsa loquitur. In the recent case of Mahon v. Osborne, Lords Justices M'Kinnon and Goddard indicated that they were prepared to apply the principle to a case against a surgeon who sewed up a patient after an operation without removing a swab that had been used to pack off an organ adjacent to that operated on. Lord Justice Scott dissented from his brethren because he did not think that a trial judge could possibly know what was the ordinary course of things in complicated surgical operations, and also as between the surgeon and the head nurse, who were both sued, against which of them the presumption of negligence had to be taken.

Again, Lord Dunedin, who is not to be suspected of extending the scope of the principle of res ipsa freely, concedes its operation in the case of injury occurring to a servant owing to defective plant."In such cases," he says in Ballard v. North British Railway Co . (at p. 53), "the fact of an accident may easily be a fact from which you may infer that the plant was defective, and it will then be upon the employer to show that the defect was one against which he could not have guarded." Such cases are based on a failure in a contractual duty.

But there are many other types of cases which could be referred to where resort has been had to the maxim res ipsa loquitur, whether the injury was effected through an inanimate or animate object, or whether the defender was at the time active in management, as in the case of the ships and the trains, or quiescent after activity, as in the placing of the sugar bags or barrels at windows of his premises. It may be that the key to the change of onus is in all the cases due

to the fact that the information as to how the accident came about is exclusively and peculiarly in the possession or management per se aut per alium of the harm-doing object—the ship, the train, the bag, the barrel, the swab—and, accordingly, it is for the defender to supply the information and clear himself of the case.

It may be that where an accident happens in the course of a dangerous operation being conducted by the defender the onus is even more definitely on the shoulders of the defender. This was the approach of Lord Haldane in his speech in Ballard'scase, but the ground for so placing the onus was none the less res ipsa loquitur.

An examination of Ballard's case shows that the Lord Ordinary held that, under the principle res ipsa loquitur, the defenders in the first instance lay under the burden to show that the accident was not due to their negligence, and it was not from first to last suggested, except by Lord Dunedin, that the Lord Ordinary was wrong in so approaching the case. It seems to me to be idle to suggest, as has been sometimes done, that Lord Dunedin was not out of harmony with the majority in his ideas as to res ipsa loquitur,as is shown by his application of the principle to the facts of the Ballard case. He does not agree with the Lord Ordinary that the mere fact of the accident happening raised a presumption that the defender has got to rebut. He considers that that is too absolute a method of expressing the legal result in all cases, and I think it is plain that Lord Dunedin means that Ballard's case is one in which the statement would be too absolute. He complains that the Lord Ordinary has taken matter relevant to infer negligence as if it necessarily inferred negligence. He then goes on (at p. 54):

"I think that, if the defenders can show a way in which the accident may have occurred without negligence, the cogency of the fact of the accident by itself disappears, and the pursuer is left as he began, namely, that he has to show negligence."

Lord Dunedin then quotes from Scott's case, and founds on the fact that Earle, C.J., refers to an absence of "explanation" by the defender, not an absence of "proof."

I shall turn in a moment to the difference between Lord Dunedin and the majority in Ballard's case, but let me first point out that the attempt to argue that what was meant by Earle, C.J., was that a prima facie case of negligence which shifts the onus on to the defender can be discharged by explanation not amounting to proof seems to me unsubstantial. Where the happening of an accident is reasonable evidence that it arose from want of the defender's duty to take due care, it is pretty clear that no mere explanation as to how the accident might have happened without negligence on the part of the defender can suffice. The so-called explanation must be given in evidence, and amount to proof sufficient to prevail over the prima facie case which has been up to that point accepted as proving the pursuer'e case of negligence.

It may be that Lord Dunedin meant no more than that a prima

facie case against the defender may be discharged by proof, not only as to how the accident did happen and that in a way which involved no fault on the defender's part, but also merely by showing that the accident might have happened without the defender's fault on the basis of facts stated by the pursuer. But such a case tabled by a pursuer does not seem to me relevant to go to proof or to form the basis of a prima facie case against the defender. If, on the other hand, the defender's suggestion as to how the accident might have happened without his fault depends on facts which are not part of the pursuer's case and not admitted by him, they must be proved by the defender as part of a proof which seems to me but little, if anything, different from the course ordinarily followed by defenders when rebutting cases in which the onus lies on them.

But I cannot harmonise what Lord Dunedin says about discharging a prima facie case by "explanation," differentiated from "proof," with the opinions expressed by the learned and noble Lords who formed the majority in Ballard's case. Lord Shaw said (at p. 56):

"Accordingly, when the story would seem relevant—to use the expression of one of your Lordships—relevant to infer liability for some occurrence out of the usual, the remainder of the story may displace that inference. But if the remainder of the story does not do so, then the inference remains: res ipsa loquitur."

"It is not disputed," said Lord Finlay (at p. 52), "and could not be disputed, that the mere happening of an accident of this nature threw upon the Railway Company the burden of proving that it happened without fault upon their part." Lord Haldane, in Ballard's case, also definitely placed on the defenders the full burden of meeting by proof the presumption raised against the defenders from the happening of the accident.

It has been suggested that, in any event, the principle of res ipsa loquitur, whatever its scope, does not apply in road accidents, and we were referred to what was said by Fletcher Moulton, L.J., in Wing v. London General Omnibus Co . as tending to show that the principle of res ipsa loquitur did not apply to traffic accidents. He in particular said (at p. 664):

"… The fact that an accident has happened either to or through a particular vehicle is by itself no evidence that the fault, if any, which led to it was committed by those in charge of that vehicle."

In the recent case of Liffen v. Watson Mr Justice Stable said that, on a review of the authorities it seems quite impossible to say that Fletcher Moulton, L.J.'s dictum does not go too far, and he refers in particular to the case of Halliwell v. Venables, in which the Court of Appeal applied the principle of res ipsa loquitur to the case of a passenger driven in a private car which skidded. In so doing, the Court was following a previous decision in M'Gowan v. Stott .

There the Court of Appeal composed of Lords Justices Bankes, Scrutton, and Atkin, strongly criticised the width of the dictum of Lord Moulton in Wing's case and applied the principle of res ipsa loquitur to the case before them, which was one where the plaintiff was struck by an omnibus which mounted the footpath on which he was walking. Suggestions were put forward that the omnibus might have skidded or been knocked on to the footpath by another vehicle, but no evidence was led for the defence to support these suggestions. The plaintiff was non-suited by the judge because of what had been said in Wing's case, but the Court of Appeal ordered a new trial.

There are, of course, limits to the application of the principle of res ipsa, and where mutual duties co-exist it is easy to see why it should be displaced. But the present case is not one in which users of highways have mutual duties which exclude the singling out of a happening as laying fault on one rather than another of the vehicles or persons involved. It is a case where under contract the defenders were bound to carry the pursuer with due care. Speaking for myself, I think the occurrence of a sudden and unexpected swerve to the offside when the omnibus was previously inclining to the pavement with a view to coming to a stop to allow the pursuer to descend, thus causing the pursuer to be thrown off, amounts prima facie to negligence, and places a burden on the defenders to show that their driver was not to blame. I am satisfied, however, that the Lord Ordinary was fully entitled to hold the driver free from blame. His story of the sudden emergency caused by the appearance of a pedestrian in his path explains the swerve, and it is corroborated by the facts and circumstances as found by your Lordships.

If more were needed, I am of opinion that the admission, spoken to by the conductress, made by the man Hyndman can be taken as part of the res gestce. The duration of the period covered by these words is not capable of precise definition, but I see nothing to indicate that the Lord Ordinary has stretched them in any way unduly in this case.

It may be that, having allowed the admission of Hyndman to be referred to, it is necessary in fairness to the pursuer to give the full benefit to her of what was subsequently reported by the police as having passed at the inquiry in the picture house. But so taking it, there remains the crossing of the street by Hyndman which, coupled with the swerve and the subsequent challenge by the driver to a man on the pavement, affords corroboration of the defence. I, therefore, also agree with your Lordship.