Ireland v. North British Railway Coy

The defence consisted in a denial of any fault on the part of the defenders. The defenders also maintained that the deceased caused, or at least contributed to cause, his death by his own negligence. They pleaded that the averments of the pursuer were not relevant or sufficient to support the conclusions of the summons.

The Lord Ordinary adjusted this issue for the trial of the cause:—“Whether, on or about the 31st December 1881, the pursuer's son James Ireland was killed at a level-crossing at or near Largo by a train belonging to the defenders, through their fault in not sounding the whistle of the engine on the train approaching the said crossing, to the pursuer's loss, injury, and damage?”

“ Opinion .—The pursuer has in the fourth article of his condescendence stated the grounds of fault which he says are chargeable against the defenders. Except as regards one of them, they are precisely set forth. There are two ways of dealing with this case. The first is to send it to a jury with a general issue as to whether the death of the pursuer's son was caused by the fault of the defenders. The second is to put the question to the jury whether the death was caused by some one or more faults specifically stated?

The pursuer moved the Second Division to vary the issue by deleting the words “in not sounding the whistle of the engine on the train approaching the said crossing.”

He argued—Confining the issue to one particular ground of fault was unusual in practice, and to do so here would shut out from the consideration of the jury a great part of the pursuer's case. No such issue had been approved of since the case of Brownlee v. Tennant & Co., June 24th, 1854, 16 D. 998 .