1945 S. C. COURT O F SESSION &c.

31

ships, b u t I have arrived there with a considerably greater amount Nov. 3,1944.
of hesitation t h a n m y brethren. T . ~
J
Irving v.
Minister of
THE L O R D JTTSTICE-CLERK i n t i m a t e d t h a t LORD JAMIESON, w h o P e n s i o n s -
was absent a t advising, concurred.

L O R D S T E V E N S O N . — I also concur.

T H E C O U R T refused t h e p r a y e r of t h e n o t e .

S I B E R N E S T M. W E D D E R B U B N , D . K . S . — W A B D E N , B R U C E & Co., S.S.C.

BROWN & L Y N N , Pursuers (Respondents).— N o . 5.

Thomson, K.C.—B. 8. Johnston.
WESTERN S . M . T . C O M P A N Y , L I M I T E D , D e f e n d e r s ( A p p e l l a n t s ) . — Nov. 3,1944.
Clyde, E.G.—M'Kechnie. Brown & L y n n
Reparation—Negligence—Road traffic—Motor vehicles in collision— g ' M T C o
Leading and following vehicles—Emergency created by pedestrian—Lead-
ing vehicle brought to sudden stop.
A motor lorry was travelling along a public street followed a t a
distance of 25 t o 30 feet b y a motor omnibus, t h e speed of both
vehicles being approximately fifteen miles a n hour. T h e driver
of t h e lorry, in order t o avoid a pedestrian, swerved suddenly t o
t h e left a n d pulled u p almost instantaneously, a n d t h e driver of
the omnibus, when h e realised t h a t t h e lorry was stopping,
swerved t o t h e right a n d applied his brakes, b u t , although h e
acted with reasonable promptitude, he did not succeed in avoiding
a collision. T h e driver of t h e lorry h a d no time t o give a n y signal,
a n d t h e driver of t h e omnibus h a d not seen, a n d h a d no reason­
able chance of seeing, t h e pedestrian.
Held (diss. Lord Stevenson) t h a t t h e fact t h a t t h e driver of t h e
omnibus, although allowing a sufficient space between t h e vehicles
in which t o deal with t h e ordinary exigencies of traffic, h a d
followed t h e lorry so closely t h a t h e could n o t cope with i t s
exceptionally a b r u p t stop did not amount t o negligence upon his
part, and, accordingly, t h a t t h e owners of t h e omnibus were
not liable to t h e owners of t h e lorry for t h e damage sustained b y
their vehicle.
Observations upon t h e d u t y of t h e driver of a motor vehicle
which is following another motor vehicle.

B R O W N & L Y N N , c a r r i e r s a n d c o n t r a c t o r s , B e a r s d e n , b r o u g h t a n 2ND DIVISION.

a c t i o n i n t h e Sheriff C o u r t a t Glasgow i n w h i c h t h e y concluded Sheriff of
for p a y m e n t of £212, 9s. 2d. i n n a m e of d a m a g e s s u s t a i n e d b y a a n a r
m o t o r l o r r y belonging t o t h e m w h i c h h a d b e e n r u n i n t o b y a
m o t o r o m n i b u s belonging t o t h e defenders, W e s t e r n S.M.T. Com­
p a n y , L i m i t e d , Glasgow.
A proof w a s l e d before t h e Sheriff-substitute (Guild), t h e
facts established a t w h i c h a r e s t a t e d i n t h e following findings i n
fact c o n t a i n e d i n t h e i n t e r l o c u t o r of t h e Second Division : —
" (1) T h a t t h e p u r s u e r s a r e a firm of carriers a n d c o n t r a c t o r s ,
h a v i n g t h e i r office a t 5 Clathic A v e n u e , B e a r s d e n , D u m b a r -
 32 CASES DECIDED IN THE 1945 S. C.

Nov. 3, 1944. tonshire; (2) that defenders are a limited company carry-
~~ ing on business as omnibus proprietors, and t h a t they have
v.rWestern a
place of business at Waterloo Street, Glasgow ; (3) t h a t on or
S.M.T. Co. about 19th November 1942. at about 1.30 p.m., a motor lorry,
registered number CGD 147, the property of the pursuers, was
being driven eastwards in Paisley Road, Glasgow, by Andrew
Gardner, a servant of the pursuers, in the ordinary course of his
employment; (4) t h a t very shortly after passing Shearer Street,
a pedestrian, who subsequently gave his name as James Smith,
100 Duke Street, Glasgow, set out from the north pavement of
Paisley Road with the ostensible intention of crossing from the
north side to the south side ; (5) that the said pedestrian, when
he left the pavement on the north side of Paisley Road, was a
short distance in front of pursuers' lorry, but was at that moment
in no danger of being run down by the pursuers' lorry which was
approaching him ; (6) that Paisley Road at this point is approx­
imately 45 feet wide ; (7) t h a t the said pedestrian had got at
least half way across the street when he apparently observed a
motor omnibus approaching him from the e a s t ; (8) that the
said motor omnibus was on its own half of the road, and was
travelling at a moderate speed ; (9) that the said pedestrian had
ample time to cross the street in front of the west-going motor
omnibus ; (10) that on observing the approaching motor omnibus
the said pedestrian became confused and moved, quickly back
into the track of pursuers' lorry, which had by t h a t time come into
close proximity to the line on which he was crossing the street;
(11) that on observing the said pedestrian, pursuers' driver, the
said Andrew Gardner, swerved sharply to his left and braked
his lorry, bringing it to an exceptionally abrupt stop ; (12) that
the said pedestrian was not struck by pursuers' lorry but fell on
to the roadway ; (13) that, in the emergency created by the
action of the pedestrian, the action taken by pursuers' driver in
braking and swerving was a reasonable and proper manoeuvre ;
(14) t h a t the emergency created by the action of the pedestrian
occurred so suddenly that the pursuers' driver had neither
' time nor opportunity to give any signal by hand or otherwise
to following traffic t h a t he was bringing his lorry to a sudden
stop ; (15) that the point at which pursuers' lorry came to a
halt was approximately sixty yards to the east of the point
where Shearer Street joins Paisley Road ; (16) t h a t there is a
traffic point at the junction of Shearer Street and Paisley Road,
and that pursuers' lorry had been held up there ; (17) t h a t as
pursuers' lorry drew away from the halt at Shearer Street, a
motor omnibus, also travelling eastwards belonging to the
defenders and driven by John Hartley, a servant of the defenders,
in the ordinary course of his employment came u p behind the
lorry ; (18) t h a t as the defenders' omnibus approached Shearer
Street, the driver slowed down slightly but did not require to
bring his vehicle to a h a l t ; (19) t h a t when pursuers' lorry started
up a t Shearer Street the defenders' omnibus was approximately
80 feet behind i t ; (20) t h a t as the two vehicles proceeded east­
wards the motor omnibus gradually made up on pursuers' lorry ;
1945 S. C. COURT OF SESSION, &c. 33

(21) t h a t when pursuers' lorry driver was compelled to take Nov. 3,1944.
action for the purpose of saving the pedestrian, the defenders' ~~T~
motor omnibus was not more than a bus length behind it, about v . r westem yn
25 to 30 feet; (22) that defenders' motor omnibus was following S.M.T. Co..
in the track of pursuers' lorry ; (23) t h a t as soon as he observed
t h a t pursuers' lorry was coming to a stop, the driver of defenders'
omnibus swerved outwards towards the centre of the roadway, and
applied his brakes in the endeavour to avoid coming into contact
with the lorry ; (24) t h a t the effort of the defenders' driver to
avoid the lorry was almost successful, but that the motor omnibus
collided with the off-rear portion of the pursuers' lorry ; (25) t h a t
the driver of the defenders' omnibus did not at any time observe
the pedestrian to avoid whom pursuers' driver braked and
stopped, and had no reasonable chance of so doing ; (26) t h a t at
the time of the collision both vehicles were travelling on their
own side of the road ; (27) that at the time of the collision both
vehicles were travelling at a moderate speed of about 15 miles
an hour ; (28) that both vehicles were damaged as a result of the
collision."
The pursuers pleaded, inter alia :—" (2) The pursuers having
suffered loss, injury and damage through the fault of the defenders'
said servant, for whom they are responsible, are entitled t o
reparation therefor."
On 11th May 1944 the Sheriff-substitute (Guild) found in fact
and in law t h a t the collision was due to the fault of the defenders'
driver ; sustained the second plea in law for the pursuers ; and
granted decree for £116, 9s. 2d. His interlocutor contained a
finding in fact (No. 28) " that the driver of the defenders' motor
omnibus was not keeping a sufficient distance behind the pursuers'
lorry to enable him to draw u p his vehicle in the event of the pur­
suers' lorry being compelled to come to a sudden stop by reason of
traffic conditions." *

* The Sheriff-substitute's note contained the following passage : —

" As regards the respective duties of preceding and following traffic
under circumstances like the present case, the matter, as far as I am
concerned, seems to be settled by a series of cases decided in this Court.
(Broomhall v. Harris, (1926) 44 Sh. Ct. Reps. 5 ; Dick v. Glasgow Corpo-
ration, (1928) 46 Sh. Ct. Reps. 209 ; Church v. A.C.8. Motors, (1929), 46
Sh. Ct. Reps. 211). Where the leading vehicle makes a sudden stop
for no reason at all without giving some signal, the driver of the
following vehicle is not held to be guilty of negligence if he fails to
draw up in time to avoid a collision. But where the sudden stop of the
leading vehicle is one rendered necessary by the exigencies of the
traffic situation, then the driver of the following vehicle is held guilty
of negligence if he is so close behind that he is unable to pull up in
time. In the present instance, the stop by the lorry was essential,
or, at any rate, reasonable. I attach no importance to the fact that,
as the pedestrian actually fell on the roadway by the side of the lorry,
it might have been a theoretical possibility for the lorry to have
omitted the stop and' trusted to the swerve alone to save the man's
life. The ratio of the judgments to which I have referred seems to
be that drivers of motor vehicles are entitled to rely on the drivers
of other motor vehicles behaving with ordinary common sense. I n
c
 34 CASES DECIDED I N T H E 1945 S. C.

Nov. 3,1944. The defenders appealed to the Court of Session, and the case
„ ~ was heard before the Second Division (without Lord Jamieson)
Brown & .Lynn _ ,., „ , n __..
v. Western °n 24th October 1944.
S.M.T. Co. Argued for the appellants (defenders) ;—Where two motor
vehicles were travelling in the same direction the driver of the
following vehicle had a duty to drive at such a distance behind
the leading vehicle as would in normal circumstances enable him
to stop without risk of collision ; he was bound to be prepared
for all traffic contingencies which might reasonably be anticipated.
But the same degree of foresight could not be demanded where
some unexpected act of a third party, as in the present case,
created an emergency which resulted in a collision. I n finding
against the defenders the Sheriff-substitute, founding upon a
rule which he had deduced from certain decisions in the Sheriff
Court at Glasgow, 1 had proceeded upon the fallacious view
that, as the leading driver had fulfilled his duty, the defenders'
driver necessarily failed in his. Such a ground of judgment
ignored the fact t h a t neither driver might have been in fault,
and that, in fact, was the position here. The pursuers had not
established by expert evidence that prior to the emergency the
distance separating the two vehicles was insufficient, or that,
when the lorry was brought to a standstill, the efforts of the
omnibus driver to avoid the collision had been unnecessarily
delayed. I n the circumstances he had acted with all reasonable
promptitude. The appeal shoidd accordingly be sustained, and
the defenders assoilzied.
Argued for the respondents (pursuers) ;—The Sheriff-substitute
had reached the right decision, and his judgment should be
affirmed. If the driver of a following vehicle could see that the
way was clear for the vehicle in front of him, he might assume
t h a t that vehicle would proceed normally ; but, if his view of the
roadway ahead of the leading vehicle was interrupted, he required
to be prepared for possible emergency stops. In busy streets
such as Paisley Road emergency stops for various reasons were
sufficiently frequent to be recognised as common incidents of
the traffic, and all users of the road were bound to act accordingly.
I n every case the question of liability was one of fact, and it
depended upon such considerations as the condition of the road,
the relative speed of the vehicles, the reliability of brakes, and
t h e alertness of the drivers. The Sheriff-substitute was right in
his view that the omnibus driver had approached so close to the
lorry as to leave himself no chance of avoiding a collision when
t h e emergency occurred. The omnibus, from the time it passed
t h e traffic control, was an overtaking vehicle. Although it was

the present instance, the driver of the defenders' omnibus got so

elose to the lorry that he was unable to pull up when the lorry executed
a sudden but absolutely reasonable stop. That, in my view, amounts
to actionable fault."
1
Broomhall v. Harris, (1926) 44 Sh. Ct. Reps. 5 ; Dick v. Glasgow
Corporation, (1928) 46 Sh. Ct. Reps. 209 ; Church v. A.C.S. Motors,
(1929) 46 Sh. Ct. Reps. 211.
1945 S. C. COURT OF SESSION, &c. 35

separated from the lorry by an interval of 25 to 30 feet, it was Nov. 3,1944.

—
still in t h a t position when the emergency occurred, and bound ~~
t o take all reasonable steps to avoid accident. The suggestion v.rWestern
t h a t the driver had no opportunity of seeing the pedestrian was s.M.T. Co.
not maintainable, for the roadway at the place where he had
attempted to cross was broad and the lorry had diverged from
its course in avoiding him. The driver of the omnibus had
accordingly ample opportunity to realise the nature of the
emergency while still a bus length distant, and the accident was
due to his failure to act with due skill, alertness and promptitude.
At advising on 3rd November 1944,—
LORD JUSTICE-CLERK (Cooper).—I should normally be slow to differ
in a case of this kind from an experienced Sheriff-substitute, but it is
plain that his ground of judgment against the defenders has been
affected by an imperfect formulation of the underlying legal principle.
'The Sheriff-substitute has extracted from three Sheriff Court decisions
an alleged rule which determines whether a following driver is guilty
of negligence when he collides with a vehicle which is travelling in the
same direction in front of him, and which has been suddenly stopped.
According to this rule the inference of negligence on the part of the
following driver arises, or is excluded, according to the propriety or
impropriety of the leading driver's conduct. I do not think that this
general formulation necessarily follows from the cases relied upon ;
but, whether it does or not, I am unable to accept it. The conduct
-of the leading driver will, of course, have an important bearing upon
liability for an accident in every case in which the conduct of both
drivers is put in issue, either by a plea of contributory negligence or
by double allegations of fault. But the duty of the following driver
is a continuous duty which persists independently of any actual
emergency or of the leading driver's reaction to such 'emergency, and
the question whether the following driver has failed in his duty cannot
depend upon whether the leading driver has fulfilled his. It is implicit
in the Sheriff-substitute's statement that, if the one driver acted with
propriety, the other must necessarily be at fault. This is not so.
Especially in a case like the present, where the emergency is created
.solely by the act of a third party, it is just as likely on a priori grounds
that neither driver is at fault. The Sheriff-substitute's ground of
judgment being therefore displaced, we are bound to re-examine the
question afresh.
We were urged in the course of debate to substitute our own
definition of the limits of a following driver's duty, and even to
prescribe the proper interval at which successive vehicles should keep
station when travelling in a city street. I am not prepared to do so.
The distance which should separate two vehicles travelling one behind
the other must depend upon many variable factors—their speed, the
nature of the locality, the other traffic present or to be expected, the
■opportunity available to the following driver of commanding a view
ahead of the leading vehicle^ the distance within which the following
 36 CASES DECIDED IN THE 1945 S. CL

Nov. 3,1944. vehicle can be pulled up, and many other things. The following
Browr & Lvnn driver'ls>m m y v i e w ; bound, so far as reasonably possible, to take up
v. Western such a position, and to drive in such a fashion, as will enable him to
Q TIT rp p
Il_' deal successfully with all traffic exigencies reasonably to be anticipated :
Lord but whether he has fulfilled this duty must in every case be a question
Justice-Clerk. Q£ fac^ jug£ a g ^ j g a q U e s t j o n 0 f f a c t whether, on any emergency
disclosing itself, the following driver acted with the alertness, skiE
and judgment reasonably to be expected in the circumstances.
I now turn to the evidence and to the three alternative propositions
on which it was sought to support a judgment against the defenders,
bearing in mind that the pedestrian whose conduct created the
emergency is not a party to the action, and that the sole issue is
whether the leading vehicle, against whose driver no allegation is made,,
can fasten liability on the following vehicle.
(1) It was maintained that the following driver should be held in
fault for failing to see the pedestrian ahead of the leading vehicle and
for failing to take appropriate anticipatory action. No such case is
made on record. The Sheriff-substitute, though finding it " a little
difficult " to see how the following driver failed to observe the pedestrian
and his movements, suggests a plausible explanation why he did not,
and refrains from convicting him of fault in this respect. With this
conclusion I agree. Having regard to the distances involved and the
relative positions of the two vehicles, I can find no support in the
evidence for imposing on the following driver the duty implicit in this
contention.
(2) It was maintained that the following driver had approached so
close to the leading vehicle that he left himself no chance to deal with
the emergency when it disclosed itself. This is substantially the
ground of fault adopted by the Sheriff-substitute by a different angle
of approach. Both vehicles were drawing away from a traffic junction
at which the leading vehicle had been halted, with the result that the
following vehicle had been gradually overhauling the leading vehicle
over a distance of about 30 yards, though the driver had no immediate
intention of overtaking and passing. At the relevant time both were
travelling about the same moderate speed, estimated at 15 miles per
hour, separated by a space of 25 to 30 feet, both vehicles being still in
third gear. There is no evidence to suggest that there was anything
unusual in the traffic conditions or the road surface to affect the
drivers' control of their vehicles. Under such conditions I see no
cause for regarding an interval of 25 to 30 feet as unduly short, and
no expert or other evidence was adduced to support such a view.
When the emergency occurred, the leading vehicle, a 4-5 ton lorry
with a high tail board, swerved to the left and contrived to effect
what must have been an exceptionally abrupt stop—within about
4 feet if its driver's estimate is to be believed—and by so doing averted
what an independent eye-witness feared would have been a fatal
accident. The driver of the following vehicle, who had no simultaneous
warning of the emergency, swerved to the right and braked violently
1945 S. C. COURT OF SESSION, &c. 37

as soon as he observed the leading vehicle's manoeuvre, but could not Nov. 3,1944. ,
avoid contact with the extreme offside of the back of the lorry j u s t . B r o w n & L n
before he pulled up. Though damage was done to the lorry, the damage v. Western
to the following vehicle was trivial, and the impact must have been ' '
a Ught one. In other words the collision was all but avoided. Taking Lord
1C
the position as it was immediately before the emergency occurred, '
I am unable to find in the evidence any sufficient support for the view
that the pursuers have discharged the onus of showing that the
following driver was at that stage guilty of negligence in not leaving
a greater space between the two vehicles. The stop made by the.
leading vehicle was not only an emergency stop but a wholly extra­
ordinary stop for such a vehicle ; and though the following driver
failed (though only just) to prevent a collision, I am not prepared to
hold that he has been proved to be in fault for failing to make better
provision for a contingency so extreme. The rule of reasonable care
and foresight cannot be elevated into a counsel of perfection which
would require'a following vehicle to give a leading vehicle so wide a
berth that every possible risk, however remote, would be amply
covered.
(3) In the foregoing contention the assumption of the argument is
that, whenever the emergency disclosed itself to him, the following
driver did everything possible. By their third contention the pursuers
submit alternatively that, if the second contention fails, the following
driver must have negligently failed to act with due skill and prompti­
tude after the emergency arose. This is not a true logical dilemma
unless we can affirm that, in every case in which a following vehicle
collides with a leading vehicle, the following driver must be in fault on
the principle of res i-psa loquitur. That proposition I reject. It is clear
that on any view of the facts the time interval must be reckoned in
fractions of a second, and that in this case some appreciable interval
must have elapsed before the following driver could appreciate the
situation and act. It is possible that in the agony of the moment the
following driver may have been momentarily guilty of an error of
judgment, or that he failed to exhibit the extraordinary promptitude
and skill which the leading driver showed in his commendable and
successful effort to save the pedestrian. But there is no proof that the
following driver failed to exercise reasonable alertness and judgment.
No one says so, and the Sheriff-substitute did not so find.
I am therefore for allowing the appeal upon the view that the
pursuers have failed to establish fault, and that, as between the two
vehicles, the loss must lie where it falls. In arriving at this conclu­
sion I have proceeded upon the pleadings and evidence in an unusual
case, and my opinion must not be read as laying down any general
rule for the determination of liability for collisions of this type except
the rule that each case must depend upon its own facts.

LORD MACKAY.—I agree that the grounds in law upon which the
Sheriff-substitute founds his 28th finding in fact, which alone is the
 38 CASES D E C I D E D I N T H E 1945 S. a

Nov. 3,1944. vehicle of his decision, and as to the terms of which I shall shortly
Brown & Lvnn m a ^ e some observations, are unsound, and the presumption, if it be a
v. Western presumption, simply will not stand ; secondly, that the pursuers have
failed to prove any of the alternative suggestions upon which their
Lord Mackay. counsel invited us to proceed to a similar or varied finding in fact
and law.
While, with your Lordship's opinion, it might suffice to leave the
matter there, I feel that some remarks of a helpful nature are called
for in this case because of the remarkable fluctuations in its presenta­
tion before us. Further, counsel told us that they had searched
English and Scottish authority in vain for any case in point, or helpful
on the point. This last fact, if it be a fact, is to me very enlightening.
For it is well within my own experience that emergency stops are of
constant occurrence, and often inevitably or almost inevitably result
in the following vehicle running into the preceding vehicle with a
moderate degree of force. It is remarkable that no case in the books
has yet been brought in which the first vehicle which made the
emergency stop tried to exonerate itself and to incriminate civilly
the follower-up. Junior counsel for the appellants took the course,
perfectly open to him if it approved itself, of reading substantially
none of the evidence, and invited us to lay down a pronouncement of
general law as to the appropriate distance at which one driver should
proceed in a busy city street behind the other. Invited to indicate
where, whether from its judicial knowledge or from its instinct, the
Court was to find and lay down any such absolute rule, he had perforce
to read, and did read, one sentence in the evidence. This was all he gave
us apart from the findings of the Sheriff-substitute, which were, so far,
against him. On that one sentence he asked us to hold, at least upon
the evidence in this case, that what he called the " normal " distance
in busy Glasgow was 7 to 8 feet. Like- your Lordship, as I understand,
I am certainly not prepared to lay down either out of my own know­
ledge, or on the evidence as it stands, any such general rule or pre­
sumption, whichever it be. True, the witness in question was an acting
policeman. [His Lordship then expressed the opinion that should it
be necessary to find some distance at which a " normal " run of traffic
might in practice proceed, so as to set up a standard, this could
properly be ascertained only by prolonged and corroborated scientific
observations over a considerable period and a large number of vehicles.
The policeman in question was a " special " man of no considerable
experience. In any event, the distance of 7 to 8 feet, rather startling
at first sight, was too small to be accepted on the uncorroborated
testimony of any single witness.]
I leave that submission and go to the first main question. Now, the
verdict which the pursuers obtained from the Sheriff-substitute depends,
as your Lordship has shown, on a view of the law and a view of certain
Sheriff Court cases, of each of which, as an outlook, it is in my
opinion impossible to approve. When he sent the case to proof the
Sheriff-substitute laid it down that, in his opinion, the question was
1945 S. C. COURT OP SESSION, &c. 39

always one of circumstances and of fact, and there must be proof, Nov. 3,1944.
and he rejected the view thus put by him: " N o authority was Brown & Lvnn
cited in support of the contention that the duty on following traffic v. Western,
is absolute. I do not regard that case as warranting such a propo-
sition," and he refers to a writer. I agree with him that one cannot Lord Mackay.
lay down an absolute duty, and that the question is one of facts and
circumstances ; but the learned Sheriff-substitute had referred to two
cases in his own Court, i.e., in the various branches of the Lanark­
shire Sheriff Court, and when coming to his final conclusion, with
his note upon it, he cites a third such case, and treats the matter as if
" this is the law of my Court," meaning thereby the law established
for him by the Sheriffs of Lanarkshire in Lanarkshire. These cases
are Broomhall,1 Dick2 and Church? On being examined each was
found to be a case in which the second vehicle ran into a preceding
one and had sued that vehicle for its damage. I shall use the letters
A and B in future for shortness ; B, then, sued A. In two of the eases
the decision was on the relevancy of B's case, and, in my opinion, these
cases have no relevant bearing whatever either on the relevancy or on
the facts of a presumed A v. B case. The third case, Church v. A.G.S.
Motors, decided as far back also as 1929 and before the regulation
of traffic by signals and otherwise was introduced, was similarly a
case of B v. A, and I find in it nothing (unless it be one casual obser­
vation) that has the least bearing on a case of A suing B. But it is the
propositions which the Sheriff-substitute deduces and applies which to
my mind would make a serious inroad on sound law. He says, as the
result of these Lanarkshire cases, that " Where the leading vehicle
makes a sudden stop for no reason at all without giving some signal,
the driver of the following vehicle is not held to be guilty of negligence
if he fails to draw up in time to avoid a collision. But where the
sudden stop of the leading vehicle is one rendered necessary by the
exigencies of the traffic situation, then the driver of the following
vehicle is held guilty of negligence if he is so close behind that he is
unable to pull up in time." The result is to introduce a proposition
(or is it presumption ?) that the reasonable duty or the unreasonable
neglect of duty of the second driver does (or even might) depend upon
the exculpation of the first. If the first driver would be excused from
fault in relation to the person endangering himself, then the second
driver must be liable to the first driver, and vice versa. In my opinion,
such reasoning is dangerous and, to put it shortly, infringes upon one
of the first propositions of formal logic, that you must not confuse
contrary with contradictory. It is only by the application of that
fallacy that the Sheriff-substitute is able to reach his one finding on
fault to which I have referred, that is, finding 28. He found that,
albeit the omnibus behind was driving at a distance of 25 to 30 feet
(and I think in a finding like that where the pursuer has to prove

1 2
44 Sh. Ct. Reps. 5. 46 Sh. Ct. Reps. 209.
3
46 Sh. Ct. Reps. 211.
 40 CASES DECIDED IN THE 1945 S. ■ 0.
Nov. 3,1944. his case the driver is entitled to the larger figure of 30, t h a t is
Browii&^Lviia*° s a y ' s o m e w n a * o v e r his own bus length), " t h e driver of the
v. Western defenders' motor omnibus was not keeping a sufficient distance
S M T1 Co .
■J ' behind the pursuers' lorry to enable him to draw up his vehicle in
Lord Mackay. the event of the pursuers' lorry being compelled to come to a sudden
stop by reason of traffic conditions." Such a finding is easy enough
if one starts out from the completeness and logical exhaustiveness of
the bracketed conditions. I t is not easy to understand otherwise. I
personally would not think finding 28, as framed, sufficient ground for
any judgment. I n one sense the most exceptionally foolish action of a
gentleman, Smith, m a y be a "traffic condition," because a foot passenger
doing a wrong thing does affect the d u t y of the drivers who are near
him ; but in another sense it is not one of the normal incidents of
traffic to be every day reasonably anticipated and allowance made
therefor. Again, the Sheriff-substitute uses the phrase " compelled to a
sudden s t o p . " I n m y opinion, one of the facts and circumstances t h a t
must always be considered in a concrete case is, W h a t was the extent
of the suddenness of the stop ? I certainly am far from saying, and it
would be absurd to say, t h a t a driver is entitled to drive without
keeping in his mind t h a t the driver in front might have on occasion t o
stop more quickly t h a n what might be described as normal. B u t t h e
question, to m y mind, turns largely on what m a y sometimes be a
loose use of the word " emergency." As regards the present case,
(a) it was a case of immediate necessity to save a life t h a t imperilled
itself, (&) it precluded any chance either of t h e driver first in order of
danger or anyone else having time t o provide against it, (c) the sudden­
ness of the emergency was such as to cut out "any possibility of
signalling, and (d) the preservation of the life of the person was due
to an action so sudden and unprepared for t h a t a lorry going at 15 miles,
as the Sheriff-substitute holds (personally I think the evidence shows
t h a t it was a good deal faster t h a n t h a t ) , was, according to the uncon­
tradicted testimony of the driver A. pulled u p in such a marvellously
short distance as 4 feet. The question, accordingly, is whether in
these circumstances provision by distance should and could have been
made against such an emergency.
I have been led already, in m y criticism of the terms of finding 28,
to anticipate a good deal of the grounds on which I hold t h a t the pur­
suers have failed t o prove their case. B u t I ought in the circumstances
to retrace m y steps and go back to t h e true question here. The first
point is t h a t the Sheriff-substitute's reasoning, being fallacious and
dangerous if further applied, must be displaced and with it his said
finding which is, in m y opinion, a mere sequel to his reasoning. W h a t
the reasoning completely ignores is t h a t in a collision such as is proved
here, between A being responsible to the foot passenger or to B and B
being responsible to A, it leaves no gap, whereas it is perfectly clear
t h a t there are always recognised circumstances of traffic in which
some damage is rendered truly " inevitable " in all h u m a n probability.
And, secondly, it leaves entirely out of account an obvious case, which
1945 S. C. COURT OF SESSION, &c. 41
seems t o be t h a t the one person whose fault created the emergency Nov. 3,1944.
for both vehicles and who would have been responsible, if found, f o r B 7~T
damage t o both vehicles, was the foot passenger. These cases are v. Western
ignored. S.M.T^Co.
Failing the Sheriff-substitute's views, we h a d presented somewhat Lord Mackay.
attractively a variety of other and alternative views. If other views
t h a n those presented to the Sheriff-substitute are t o be p u t forward
in this Court, it must be qilite clear a t least t h a t they were given due
notice of b y the record. On most of them, if not all, I think there
was no such notice, but as usual I prefer to found on t h e proved facts
rather t h a n on mere pleading. While saying so I do wish to point out
t h a t apart from the usual and wholly unspecific averments of " exces­
sive speed " (disproved), " without keeping a proper lookout " (dis­
proved), and " drove carelessly," there is only one sentence which could
justify a verdict here. I t is this : " He drove the omnibus so closely
to the lorry in front t h a t he was unable to draw u p safely when it
stopped."
If I a m right in refusing to predicate a 7-to-8-foot gap as good (or
-excusable) driving, upon the uncorroborated testimony of one witness,
I am a fortiori clear t h a t I should not advise the Court to predicate a
25-to-30-feet gap as negligent driving, upon no evidence a t all to t h a t
effect.
Consider now the alternative cases attempted. The first was this,
t h a t the second driver on the facts should have been able to see t h e
m a n Smith turning and running into danger and so should have seen
him and have therefore acted more promptly, being made wise by
t h a t vision. I a m quite satisfied t h a t we should do injustice if we
proceeded on any such footing. There is nothing in t h e record to
indicate such a d u t y or such a possibility of vision. I think, further,
t h a t the evidence of Fletcher, the omnibus driver who was coming
in t h e opposite direction, is quite satisfactory t h a t such an opportunity
was not afforded. I here introduce what will figure in the sequel.
There is a finding t h a t at the moment t h e two vehicles were proceeding
in one another's tracks as it is called, t h a t is t o say directly behind
one another, and the incriminated omnibus driver says t h a t he was
keeping his eye upon the tail board of t h e lorry in front. I n m y
■opinion, and I wish this to be emphatic, I think t h a t t h a t was in the
circumstances the best driving, at least it was very excusable driving ;
for in a stream of traffic in a busy city like Glasgow the most important
thing, if you are in a train of vehicles, is t h a t you should never for more
t h a n the most instantaneous vision deflect your eye from the rear -of
t h e preceding vehicle, and past the elevated tail board of a lorry I
think it is in practice impossible for a driver to see. At any rate, I
am satisfied t h a t on this head there is no just attack.
The next view presented was t h a t , albeit there was no signal and the
action was such as to effect a full stop in 4 to 5 feet, the driver, by his
being unable to avoid all contact in the distance, proved b y t h a t bare fact
t h a t he did not act with reasonable promptitude, otherwise with his brak-
 42 CASES DECIDED I N T H E 1945 S. C.

Nov. 3,1944. ing power he must have pulled up just short of the stopped lorry. Here
B owiT&Lvnn a S am t n e r e is, I think, fallacious reasoning for several reasons. First
v. Western of all I cannot find this fault on record. It is an afterthought. Secondly,
I do not think it was argued to the Sheriff-substitute, as clearly appears.
Lord Mackay. Thirdly, it seems to me to apply to an emergency stop by the second
lorry the strictness of criticism as to promptitude and type of action
taken which is appropriate to the normal stops of traffic. On this
head I would venture to found myself very strongly upon the view
of facts which after reading the evidence fully for myself I have formed.
The witness J. Fletcher is, in my opinion, not merely much the best
and most reliable witness and a witness for the pursuers, but I think
he is the only independent observer who is worth anything. He gives
his estimates of what happened as he saw it and of the occurrence,
and I am prepared to accept him. In his summation he gives this
answer to a question : " Would it be correct to say that both vehicles
had to make emergency stops because of this man's action ? " and
his answer was " yes." Such is my apprehension putting all the
evidence together also. I think in the particular concrete circumstances
of this case the emergency was not merely for vehicle A which amounted
to the attempt to save life, but was equally, or almost equally, an
emergency in the proper and full sense for vehicle B, and the question,,
just as it would have been for A, was, could driver B be blamed for
just failing to miss the corner of the lorry any more than driver A
could have been blamed if he had just failed to miss the man
and had run him down ? If that be right I think that the question
ceases.
I would take my opinion on this question one step further. I am
clearly of opinion that the extraordinary view of" absolutes " pled by
the pursuers' counsel cannot be adopted as a generalised proposition of
law. It amounted to this, that there are some absolute duties which it
is for the Court to lay down irrespective of (a) the identical circum­
stances of the case in question where it is emergency, and (6) irre­
spective of proof of what a reasonable driver will do. The fallacy
which occurs, I fear, too often keeps cropping up in these rather
astounding words in this record as well as in others, that it was his
duty (that is a legal duty) " to avoid collision with " the vehicle.
The duty is not so. It is to act reasonably in all the circumstances
having a reasonable anticipation of occurrences that are possible.
And it is this wherein seems to me to consist the fallacy of the above
second alternative argument. A reasonable action, where such an
extraordinary sudden stop as this is made, depends on several things.
First of all, there must be allowance for apprehension. Secondly,,
there must be allowance for reaction time, and thirdly, there may be
some considering of whether the best action was taken. On each I
have something to say. Counsel did not seem to me to appreciate
this clear practical point. When two vehicles are going at the same
or approximately the same speed, the one behind does not see that
the first vehicle (which gives no slow or stop signal) is in the act of
1945 S. C. COURT OF SESSION, &c. 43

pulling u p b y any other indication t h a n b y the fact t h a t its rear, or Nov. 3,1944.
in this case its tail board, begins t o enlarge in one's vision. O n e B TTr
cannot see its passage relative to the macadam of the street. Accord- v. Western
ingly, every such person faced with a n emergency pull-up is entitled '
t o some (no doubt fractional) second, but important fraction, t o Lord Mackay.
apprehend and say " Oh, t h a t vehicle is coming back on me " as it
were. T h a t is the appearance it presents. Secondly, as regards
reaction time it was admitted t h a t t h a t is allowable, b u t it was
suggested t h a t it should be very short. Well, the whole overtaking
of one vehicle by another, as I see them, driving every day, occupies
almost a less fraction of a second t h a n is easy except by stop watches
t o apprehend. B u t t h a t some reaction time is permissible is correct.
While 4 feet is traversed by A, speed reducing rapidly from 15 m.p.h.
t o 0, B will probably slide 10 t o 14 feet. Some material p a r t of t h a t
is for apprehension and reaction. The third point is whether he took
suitable action. Now, the argument as solely presented to us did not
stipulate a combined swerve outwards a n d a braking, which was the
action taken. I t stipulated t h a t the driver behind a n emergency stop
must have his vehicle in such control t h a t , by the action of his brakes
alone and holding his wheel rigidly steady, he will pull u p 6 inches or
more behind the former vehicle. The action taken here was not t h a t ,
a n d yet it was in m y humble judgment the correct action. I t was, on
seeing a vehicle in front not merely suddenly becoming larger, b u t also
swinging t o its left, t h a t the primary reflex was to direct one's course
t o the right so as t o get clear of it. At the same time I think it clear
on t h e evidence (which is not contradicted) t h a t the omnibus driver,
while doing t h a t , did put on his brakes. Now, he h a d the safety of
himself, his company's property, and any passengers t o consider as
well, and to p u t on his brakes a t their hardest while he swung out was
t o risk a very much more serious disaster t h a n merely damage to the
back of a lorry. I t was to risk a skid of the extreme sort t h a t throws t h e
vehicle completely out of control. The argument as now presented for
the lorry owners, who came comparatively lightly off, is t h a t an action
should have been t a k e n which might have imperilled all these lives.
I a m of the opinion t h a t , even if the omnibus driver did not apply
his brakes as h a r d as he could, he was not merely justified but wise in
so doing. I n short, the action t a k e n was a n action of avoidance with
the help of brakes, rather t h a n a n action t o brake on the axis line of
his progress. I n m y opinion he was right, a n d took the correct course
in doing so. I n such circumstances it is not, according t o m y knowledge
of m a n y cases, proved t h a t you can or ought to pull u p in the minimum
time t h a t braking alone for maximum effect would supply. We h a d
a n a t t e m p t to show, from the damage spoken to b y two witnesses,
t h a t there was a serious collision, p r e t t y near the one half of the lorry
involved. I n m y opinion t h e evidence led for the defenders is far prefer­
able on this point, and the real damage along with oral testimony shows
t h a t this omnibus all but cleared the lorry to the right, which it was t h e
driver's intention to do, and as I have expressed it, I think his correct
 44 CASES DECIDED I N T H E 1945 S. C.

Nov. 3,1944. intention. He failed to do so—the amount of swing required in his own
B o &Tl/pnn lengtih- being let us say 7 feet 6 inches at least, in a distance of say
v. Western 27 feet—he failed to do so by only 6 inches, and the damage sued for
is comparatively trivial. The point of general importance, how-
Lord Maekay. ever, is that, in my judgment, (a) the omnibus driver B was not
proved (it being the duty of the pursuer to prove it) to have been
proceeding at any distance that would be regarded by normal and
reasonable drivers as dangerous, and (6) that faced by an extremely
and unusually sudden occurrence he took the right manoeuvre, and
(c) that he took it with reasonable promptitude. This case has in short
been argued throughout as if it were solely a case of a " stop " by the early
vehicle A. I think such treatment is in error. It was rather of the
essential character of a " swerve " designed to get to the near side of
the obstacle. I am clear (a) that it would in reason appear to those
behind as a " swerve " rather than a stop. It was a sharp movement
to the side easily observed as such ; (6) that the first reaction of the
driver of the omnibus would be to swerve in the opposite direction.
And that was done.
For these reasons, and on a consideration of the whole proof,
especially regarding Fletcher as much the most praiseworthy witness,
I think it might be well said that the proof displaced in fact all the
alternative cases sought to be built up, most of which are not within
the record. In any event I am of opinion with your Lordship that the
pursuers, being the owners of the lorry which made the emergency
stop, have failed to prove that their damage was due to faulty driving
on the part of the omnibus driver. They therefore cannot succeed.
I would make the appropriate findings which I think need not be
other than simple.

LORD STEVENSON.—In my opinion, the pursuers have proved their

averments that the defenders' servant failed in his duty to drive with
care, and in particular he "failed to drive at such a distance behind
the pursuers' lorry in front of him that he would be able to draw up
in safety in the event of the lorry stopping."
It is admitted that the pursuers' lorry-driver made an " emergency
stop " to avoid running down a pedestrian, and that the circumstances
justified him in doing so. It is further admitted that the defenders'
omnibus was being driven so close to the lorry that the driver could not
draw up without colliding with the lorry. In these circumstances I am
of opinion that the question we have to consider is—-Was the omnibus
driver at fault in driving so close to the lorry that he did not have
sufficient space between the vehicles to enable him to stop after he
realised the lorry was going to stop 1 I so state the issue between
the parties because I think there is a general duty on the driver of a
vehicle to keep between him and the vehicle ahead such a space as
will enable him to draw up without colliding with the forward vehicle
after he sees that it is about to stop, or has stopped. I admit a possible
exception, viz., that the conditions of road and traffic do not compel
1945 S. C. COURT OF SESSION, &o. 45

him t o shorten the distance. I do not think t h a t the fact t h a t the Nov. 3,1944.
forward vehicle makes a n emergency stop is b y itself sufficient t o B 77
justify breach of t h e rule I have laid down. A motor driver con- v. Western
Co
stantly has t o face unexpected situations. If he drives with care he "
will be alert t o meet t h e m a n d t a k e all reasonable precautions t o Ld. Stevenson.
do so.
The Highway Code lays down certain precepts for the safety of
persons using the roads. To ensure t h a t all drivers know them, a n
applicant for a licence t o drive has t o answer the question " H a v e
you studied t h e Highway Code ? " T h a t Code (Rule 10) contains the
p r e c e p t — " Always be able to pull u p your vehicle well within the
distance for which you can see the road t o be clear, whether b y night
or by d a y . " Section 45 (4) of the Road Traffic Act, 1930, 1 directed
t h a t failure on t h e p a r t of any person t o observe any provision of the
Code " m a y . . . be relied upon . . . as tending to establish or t o negative
any liability " in question. Apart from the terms of the Code, I am
of opinion t h a t each driver should t a k e all the reasonable steps t h a t
lie in his power to avoid accidents. H e is aware t h a t passengers m a y
step from a pavement without regard for their own safety. H e must
therefore be alert t o t a k e steps to avoid t h e m . To stop suddenly a n d
avoid a n accident is one's duty. I think it is also a common law d u t y
t o avoid running into a vehicle from behind, and t h a t Rule 10, to which
I have referred, states in simple language the d u t y of all motor drivers.
I desire t o emphasise t h e terms of the duty.—(First) I read t h e word
" always " as meaning in all circumstances within your control;
(second) you must have sufficient space t o enable the vehicle to be
drawn u p well within the space intervening between the two vehicles ;
(third) t h e word " well " signifies t h a t the driver must be sure the
space is sufficient. I n case of doubt the following driver must accept
t h e responsibility for a n under estimate.
If attention be paid t o the precautions I have referred to, a sudden
stop of a vehicle in front will not incommode a following driver. He
knows, or should know, how quickly he can react to anything he sees.
H e should know his speed and the approximate distance within which
he can draw u p his vehicle, looking t o its speed, power, weight, and
the condition of the brakes, and the nature of the roadway. H e cannot
attribute failure t o estimate any of the matters to anyone but himself.
A sudden stop b y a vehicle in front will not inconvenience him if he
allows a n ample margin for safety, as t h e word " well," t o which I
have already referred, implies t h a t he should. The defenders' driver
seems to have accepted this standard of duty. I n cross-examination
he agrees t h a t " a prudent driver always drives a t a distance behind
the vehicle in front so t h a t he can stop in the event of a n emergency."
I t is only right, however, t o point out t h a t he adds to his answer t h e
qualification t h a t his failure t o stop on the occasion in question did
not arise " through his careless driving." W h a t I think he means is

1
20 and 21 Geo. V, cap. 43.
 46 CASES D E C I D E D I N T H E 1945 S. C.

Nov. 3,1944. that he agrees that the necessary distance should exist but seeks to
BrowiT^Lvnn eu< ie responsibility for its non-existence.
v. Western The next question I consider is—Was there anything to prevent
'J_' the defenders' driver keeping a greater distance in the rear of the
Ld. Stevenson, lorry ? There is, in my opinion, only one answer to this question,
and that is, No. I agree with your Lordship in the chair that the
lorry had proceeded about 30 or 40 yards after having been drawn
up at the crossing. The driver was changing from second to third gear
when he was compelled to draw up as soon as possible. He did so in
about 4 feet. The omnibus was following in the track of the lorry ;
the driver did not intend to pass. I t was travelling in third gear.
The speed of the vehicles was the same, viz., 15 miles per hour, and
the distance which separated them I accept at 25 to 30 feet. There
was no other traffic on the roadway going in the same direction and
nothing which compelled the omnibus to travel so close to the lorry.
The traffic conditions at the time did not prevent the omnibus driver
from turning out to overtake the lorry. Alternatively, if the driver
did not desire to overtake, he might have remained further to the rear
of the lorry. In these circumstances I cannot excuse the driver of
the omnibus drawing so close to the lorry that he was unable to draw
up when he realised that the lorry was going to stop.
I may add that I cannot excuse the driver of an omnibus travelling
at 15 miles an hour for failing to draw up as smartly as the driver of a
lorry proceeding at the same speed. In the present case if the omni­
bus driver proceeded twenty feet after the lorry began to draw up a
space more than twice that taken by the lorry to draw up was left
between him and the position when the accident occurred. I am, how­
ever, content to base my judgment on the ground that the condition of
traffic at the locus of the accident did not justify the omnibus driver
being so close to the lorry that he could not draw up within the
space separating the vehicles.

T H E COTJET, after making the findings in fact quoted supra,

recalled the interlocutor of t h e Sheriff-substitute, and in
place of the findings in fact and in law contained in it,
found in fact and in law " (1) t h a t it is not proved t h a t
under the circumstances which existed the driver of the
bus was negligent (a) in not keeping sufficiently far back
from the pursuers' lorry ; or (6) in failing to anticipate and
provide' for the exceptional difficulty which emerged ; or
(c) in failing to act with reasonable foresight, promptitude
and skill; and (2) t h a t the collision was not due to t h e
fault or negligence of the defenders ; " allowed the appeal
and assoilzied the defenders from the crave of the initial
writ.

WALLACE, BESG & Co., W.S., for BBOWNING & BOWES, Glasgow—DAVID DONALD.