M'Sherry v. Glasgow Corporation

Alice Mallon or M'Sherry, wife of and residing with Peter M'Sherry, 12 Kidston Street, S.S., Glasgow, pursuer , brought an action with the consent and concurrence of her husband against the Corporation of the City of Glasgow, defenders , in which she concluded for £250 damages in respect of injuries sustained by her in falling off one of the defenders' tramcars.

The defenders have asked me to dispose of the case at this stage and dismiss the action. I consider the case a narrow one, and I conceive that the pursuer will have difficulties in obtaining a verdict—difficulties connected with both points in the case—I mean in connection with the conduct of the motorman against whom negligence is alleged, and secondly, in connection with her own conduct.

It must be kept in view that that is a question of fact, and that the defenders are the pursuers in the issue which this part of the case raises; and I am asked to hold that they have proved their case, and to hold that on the pleadings. That is a matter which is very rarely determined in that way at this stage. It must be kept in view that this is a question for the jury normally and in the ordinary case. I am asked to say at this stage on those pleadings, and on the facts that those pleadings disclose, that no Page: 180 ↓

Here is her case. She says that she got down to the step to be ready for getting off. Mr Fraser, for the Corporation, says that that is an admission of fault. I am not prepared to hold that as a general proposition. I think it all depends on what position the car was in with reference to the stopping-place, and at what pace the car was travelling, and I am not prepared to say that in all circumstances it is negligence on the part of the passenger to get on the step of the car preparatory to descending.

But, as I have said, this second question, like the first, in my humble judgment can only be properly decided when the facts have been fully ascertained. Therefore on the whole matter, although with difficulty, I think it is my duty to let the case go to a jury.”