The defender's first plea-in-law is that “the pursuer's statements are irrelevant,” and this plea the Sheriff, affirming the judgment of his Substitute, has sustained, on the ground “that the pursuer's averments show that it was owing to her own want of care that she met with the accident for which she seeks to hold the defender liable.” The Sheriff states his reason for thinking so thus—“The hole in the floor of the wash-house had existed for a considerable time; she was well aware of its existence, and if she chose to use the wash-house while the defect in the floor existed, she might with reasonable care have avoided letting her foot get caught in the hole as she describes.” But there is no such statement by the pursuer. I assume that the pursuer means to assert, and does so, that the hole in which her foot was caught on 16th August resulted from the dilapidated and “much-in-want-of-repair” condition of the wash-house floor, but there is certainly no statement by the pursuer that it had existed for a considerable time before 16th August, or that she was aware of its existence before her foot got caught in it. The production or occasioning of such a hole is just the danger attending the neglect to give due and proper attention to the condition of such a floor as this, and failing to keep it “in proper and safe condition and state of repair.” I quote from the record. The defender denies the averment that he failed in his duty as landlord, asserting that the floor in question was sound and safe, and that no complaint was ever made to him; but I am of opinion that the pursuer has relevantly averred the contrary, and that as clearly as she has averred that the defender was her landlord, which he as clearly denies.
I am of opinion that the pursuer's averments are relevant, and that the Sheriff's judgment ought to be reversed, and the case sent to trial.
Lord Trayner —I do not see how we could sustain the relevancy of this action consistently with the decision pronounced by us in the case of Webster . But apart from that precedent I am of opinion that the present action should be dismissed as irrelevant on the grounds on which the decision in Webster proceeded.
Lord Moncreiff —I agree with the Sheriffs that the pursuer's averments are not relevant, because they disclose that she continued to work in the knowledge of a seen danger, of the existence of which she had been aware for a considerable time. The case of Webster , 19 R. 765, appears to be directly in point, and even if we had not had that case to guide us I should have come to the same conclusion. In Webster's case the Court were unanimous in recalling the interlocutor of the Sheriff, who had allowed a proof. Here the Sheriffs have dismissed the action as irrelevant, and I think we should affirm that judgment.
The Court dismissed the appeal and affirmed the interlocutor appealed against.
Counsel for the Pursuer— Crabb Watt. Agent— W. A. Farquharson, S.S.C.
Counsel for the Defender— D. Anderson. Agents— Macpherson & Mackay, S.S.C.