Auld v. M'Bey and Another

Factual and Procedural Background

Two omnibuses were traveling along a road, one following the other closely, with the horses of the second omnibus within a few yards of the first. Several children were running after the first omnibus or hanging on its step. One child, approximately six years old, fell in front of the second omnibus and was fatally run over before the driver could stop the horses. The child's father brought an action for damages against the omnibus proprietor and the driver employed by him.

The Sheriff-Substitute initially found that the defenders had not proven negligence on the part of their servant and dismissed the claim. On appeal, the Sheriff found the defenders liable, awarding damages of £60, noting some contributory negligence on the child's part but emphasizing the defenders' failure to exercise proper care. The defenders then appealed to the Court of Session.

Legal Issues Presented

1. Whether the driver of the second omnibus failed in his duty of care towards the child running after the first omnibus.
2. Whether contributory negligence on the part of the child should bar or reduce the claim for damages.
3. The extent of the defenders' liability given the proximity of the second omnibus to the first and the circumstances of the accident.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the difficulties in reconciling conflicting eyewitness accounts but found the testimony of children to be reliable. The child was not on the omnibus but running alongside it attempting to board. The court emphasized that drivers must anticipate that children may behave unpredictably near carriages and must exercise appropriate care accordingly.

The critical finding was that the driver of the second omnibus was too close to the first omnibus, with the horses’ heads only about six yards behind. This proximity prevented the driver from stopping in time after the child fell. The court concluded that the accident would not have occurred if the omnibus had been following at a safer distance, thus the driver failed in his duty of care.

The court rejected the lower court’s view that contributory negligence by the child barred recovery, holding that the issue was not relevant in this case because the defendant’s failure to maintain a safe distance was the proximate cause of the accident.

Holding and Implications

The court held that the driver of the second omnibus failed in his duty of care by following too closely, which directly caused the child's death. The court reversed the earlier acquittal and upheld the award of damages in the amount of £60.

Holding: The appeal was dismissed, affirming liability on the part of the defenders.

Implications: This decision underscores the responsibility of drivers to maintain adequate distance and exercise care to avoid harm to pedestrians, especially children who may unpredictably approach vehicles. No new precedent was established beyond reaffirming existing negligence principles.