M'Graw v. Edinburgh Street Tramways Co.

Mrs Cecilia Gilhooly or M'Graw, 107 High Street, Edinburgh, as tutor of her son Michael M'Graw, aged twelve years, brought an action of damages against the Edinburgh Street Tramways Company for £500 as damages for injuries sustained by her son through the fault of James Bowie, a driver in the employment of the above company.

The defenders denied that the boy had been struck by the driver, or injured through his fault as alleged, and explained at great length that the injuries were entirely the result of the boy's own fault, that he was a trespasser on the car, and that the driver was bound to prevent such trespassing.

They pleaded, inter alia —“(1) The pursuer's averments are irrelevant, and insufficient to support the conclusions of the summons.”

The defenders have pleaded that the pursuer cannot recover because he was a trespasser, and because he contributed, by his own fault or negligence, to cause the injury he received. It is these pleas which raise any serious difficulty. For, supposing the boy was a trespasser, which probably he was, that could not possibly excuse the assault averred in condescendence 3, and Page: 257 ↓

But condescendence 3 seems to raise a question, which may be a question of difficulty, in regard to the responsibility of the defenders for what James Bowie, the conductor of the tramway car, is said to have done; and on account of that question I think it possible that there might be a miscarriage before a jury, either on account of misdirection by the Judge, or misapprehension by the jury. I think there is in that part of the case sufficient special cause to warrant me, under section 4 of the Act of 1866, in directing a proof.