Graham v. Edinburgh and District Tramways Co., Ltd [1916] ScotLR 42 (21 October 1916)

Graham v. Edinburgh and District Tramways Co., Ltd [1916] ScotLR 42 (21 October 1916)

The averments of negligence, particularly the failure to keep a proper lookout, were relevant and sufficient to allow proof. The Sheriff-Substitute erred in dismissing the case as irrelevant without hearing evidence. The question of whether the driver ought to have seen the dog is a factual matter that requires inquiry.

Citation
[1916] ScotLR 42
Parties
Pursuer: James Graham; Defenders: Edinburgh and District Tramways Company, Limited
Jurisdiction
Scotland
Judgment Date
21 October 1916
Procedural Posture
Reparation (damages) / Appeal From Dismissal on Relevancy; Interlocutor Recalled and Proof Allowed
Outcome
appeal allowed; interlocutor of Sheriff-Substitute recalled; proof allowed
Legal Topics
Duty of Care, Animals on Roadway, Pecuniary Loss, Standard of Care for Drivers
Tort Reparation Negligence Duty of Care Animals on Roadway Pecuniary Loss Standard of Care for Drivers

Case Brief

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Parties

James Graham

Pursuer

Edinburgh and District Tramways Company, Limited

Defenders

Procedural Posture

Reparation (damages) / Appeal From Dismissal on Relevancy; Interlocutor Recalled and Proof Allowed

Legal Issues

  1. 1 Whether the averments of negligence against the driver were relevant to allow proof
  2. 2 Whether a driver owes a duty of care to avoid injuring a dog on the roadway, regardless of the dog's purpose for being there
  3. 3 Whether the absence of an averment that the driver saw the dog is fatal to the pursuer's case

Ratio Decidendi

The averments of negligence, particularly the failure to keep a proper lookout, were relevant and sufficient to allow proof. The Sheriff-Substitute erred in dismissing the case as irrelevant without hearing evidence. The question of whether the driver ought to have seen the dog is a factual matter that requires inquiry.

Court Disposition

appeal allowed; interlocutor of Sheriff-Substitute recalled; proof allowed

Orders

  • Recall of the Sheriff-Substitute's interlocutor
  • Remit to Sheriff-Substitute to allow proof