Innes v. Fife Coal Co., Ltd

John Innes, engine-driver, Lumphinnans, Fife, brought an action in the Sheriff Court of Fife at Dunfermline against the Fife Coal Company, Limited, concluding for £250 as solatium for the death of his son.

Note .—“This was a sad accident, for the driver of the train of waggons between which the child was crushed happened to he the father of the child. But whether any liability attaches to the defenders, even on the pursuer's own showing, is far from clear. It is a question belonging to a difficult category of law.

It must be regarded as settled that there is not in general any common law obligation on the owners of a railway to fence the railway so as to prevent children straying on it. Davidson v. Monklands Railway Company , July 5, 1855, 17 D. 1038 ; Houghton v. North British Railway Company , November 29, 1892, 20 R. 113 , is not inconsistent when examined.

The respondents argued—(1) The pursuer's averments were irrelevant. (2) As the pursuer's own act had been the immediate cause of the accident, he could not claim damages for the consequences. The maxim volenti non fit injuria applied— Membery v. Great Western Railway Company , May 14, 1889, 14 A. C. 179 , per Lord Bram well.

Lord President —The only question which we have at present to decide is whether this case should be dismissed as irrelevant, or whether it should be sent to a jury. We have no right to anticipate what the evidence may be—we can only consider whether a relevant case is stated on the record. The material allegations of the pursuer are that he being an engine-driver in the employment of the defenders, was shunting his locomotive with four waggons along a siding, which was open and unfenced, that he had no guard or Page: 241 ↓