Slater v. A. & J. M'Lellan

James Peter Slater, Paisley, pursuer , brought an action in the Sheriff Court at Glasgow against A. & J. M'Lellan, cartage contractors, Paisley, defenders , for payment of £131, 0s. 6d. in name of damages for injury to his house and garden by the burning of a vehicle loaded with compressed cork which took fire when on the public road in front of the pursuer's house.

The pursuer pleaded, inter alia —“3. The said steam lorry being liable to emit sparks, and so a nuisance within the meaning of section 13 of the Locomotive Act 1861 and also at common law, the defenders are liable for any damage caused by the use thereof, as condescended on. 4. Alternatively, the damage sustained by pursuer having been caused through the fault and negligence of the defenders' servant, for whom they are responsible, decree should be granted as craved, with expenses.”

The Sheriff-Substitute ( Fyfe ) after a proof assoilzied the defenders, holding that the waggon and trailer did not constitute a nuisance within the meaning of section 13 of the Locomotive Act 1861, and that the Page: 599 ↓

Argued for defenders—The waggon with its load did not constitute a dangerous nuisance, consequently the defenders were not liable unless negligence was proved. Moreover, the accident could not have been foreseen. It was the kind of danger which property adjacent to a high road was inevitably exposed to. The pursuer therefore must be held to have accepted the risk— Fletcher v. Rylands , 1866, L.R., 1 Ex. 265 , per Blackburn, J., at 286.

Lord Cullen —I agree with your Lord—ships regarding the effect of the evidence as to the source of the conflagration.