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Appendix Page 11


company on reaching its destination, to another railway company. There was averred to be a defect in the brake of the wagon at the moment of transfer which would have been discovered if a proper inspection had been made. The railway company which had received delivery of the wagon, with the knowledge and toleration of the first company, subjected the wagon to a further short period of haulage. In the course of this haulage one of the servants of this latter company sustained personal injuries. It was decided that the servant of the company which had undertaken this second and separate operation, had no right of action against the company which owned the wagon. Any duty of inspection relative to the second period of haulage had arisen after the owners of the wagon had parted with control and had become released from responsibility; any duty of inspection which for this journey ought to have been made, was the duty of those who used and not of those who owned the wagon. The decision appears to me to be a typical illustration of the limitation of liability to make reparation as conditioned by proximate cause. I cannot regard the decision under which the owners of the wagon were released from responsibility, as having proceeded on the view that the haulage operation during which the pursuer sustained injury was not associated with danger. If danger had not been present so as to impose a duty of inspection, the relevancy of the averments against the controlling railway company would not have been assumed. If one may trust experience both within and beyond Courts of Law, the toll of life which is taken in shunting operations, more especially when detached wagons are moved without the control of engine power, is little less serious than the toll which is taken during the discharge of cargo. With respect I accordingly prefer the explanation of the decision of the subsequent case of Oliver v. Saddler & Company, 1929 S.C. (H.L.) 94, which was given by those of the Noble and



Lord Moncrieff

Appendix Page 11

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