THE LIABILITY OF RAILWAY COMPANIES NEGLIGENCE TOWARDS PASSENGERS. A, PARSONS, s^ UNIVERSITY OF CALIFORNIA LOS ANGELFS SCHOOL OF LAW LIBRARY J ru Railway Company ... 138, 142 Daly V. Dublin, &c., Railway Company 142 Daniel v. Metropolitan Railway Company 44, 127 Davey t;. London and South-West4»m Railway Company ... 6 Davies v. Maun 4 Davies v. London, Brighton, and South Coast Railway Com- pany Dawson v. Manchester, Sheffield, and Lincolnshire Railway Company 31,88 Degg V. Midland Railway Company 33 Denton v. Great Northern Railway Company 164 Dickinson v. North-Eastern Railway Company 137 Dowsett V. London, Tilbury, and Southend Railway Company 8 Dublin, Wicklow. and Wexford Railway Company v. Slattery 66 Duckworth r. Johnson 139 Dudman v. North London Railway Company 78 46 F Folkos u. Metropolitan Railway Compauy 102 Fordham v. London. Brighton, and South Coast Railway Company ^9 Foulkes v. Metropolitan Railway Company 32.39,128 Foy r. London, Brighton, and South Coa.st Railway Company 95 Francis I'. Cocki-ell -^ Franklin v. South-Eastern Railway Company 137, 139 G Gallin V. London and North-Westem Railway Company ... 110 Table of Cases. 27 137 19 40 143 38 151 91 171 16 Gee V. Metropolitan Railway Company . page 7, 30, 57, 76 Geo7'ge and Richard, The 137 Gilbert v. North London Railway Comi)any Gilliard v. Lancashire and Yorkshire Railway Company Glover v. London and South-Western Railway Company Gordon v. New Town Railway Company Grand Trunk Railway Company of Canada v. Jenning Great Northern Railway Company v. Harrison . Great Northern Railway Company v. Shepherd Great Western Railway of Canada v. Braid Great Western Railway Comjjany v. Lowenfeld Greenland v. Chaplin Grote V. Chester and Holyhead Railway Company . . . 43, 94 H Hall V. North-Eastern Railway Company 110, 131 Hamilton v. Caledonian Company 40 Hamlin v. Great Northern Railway Company 172 Hanson v. Lancashire and Yorkshire Railway Company ... 31 Harris v. Great Western Railway Company 159, 161 Harrison v. Great Northern Railway Company 15 Harrison, Great Northern Railway Coxnpauy v 38 Harrison v. London and North- Western Railway Company 141 Hart V. Lancashire and Yorkshire Railway Company 84 Hawcroft v. Great Northern Railway Company 171 Hellawell v. London and North-Westeru Railway Company 102 Henderson v. Stevenson Ill, 162 Hetherington v. North-Eastern Railway Company 139 Hicks V. Newport and Abergavenny Railway Company . . 143 Hirschfeld v. London, Brighton, and South Coast Railway Company 107 Hobbs V. London and South-Western Railway Company . . 172 Hodkinson v. London and North- Western Railway Company 150 Hogan V. South-Eastern Railway Company 56, 60 Hooper v. London and North-Western Railway Com- T)(111V • • ■ • ■ ■ ■ ■ ■ • "^? J-i^y, JLOtj Hudston u. Midland Railway Company 151 Table of Ca.se,s\ xi Hughes V. Macfie page 12 Hurst r. Great Western Railway Company 163 Hyman r. Nye 43 J. Jackson v. Metropolitan Railway Coinpauy... 16, 63, 73, 71- Jewson V. Gatti 1 1 Jones V. Boyce ^^ Jones V. Great Western Railway Conii)any 74 K. Kearney v. London, Briglitou, and South Coast Railway Company -^1 Kent V. Midland Railway Company 153 L. Laugton v. Lancashire and Yorkshire Railway Company 10 Latcher t;. Rumney 44 Lay v. Midland Railway Company 49 Leach V. South-Eastern Railway Company 149 Le Blanche v. Loudon and North-Western Railway Company Ki^. ^'^^ Lee V. Lancashire and Yorkshire Railway Company lOi Leggott r. Great Northern Railway Company 142 Lendon t». London Road Car Company 142 Lewis 1). London, Chatham, and Dover Railway Comiiany lOO Lockyer i'. International Sleeping Car Company 174 Longmore V. Great Western Railway Company 49 Lovell V. Loudon, Chatham, and Dover Railway Company 1 4H Lowenfeld, Great Western Railway Company r. 171 Lynch v. Nurdin ^^ M. Macmahon V. Field '"-^ xii Table of Cases. Macrow v. Great Westeru Railway Gom-piinj page 148, 151, 152 Macldox V. London, Cbatham, and Dover Railway Company 71 Mangan V. Atherton 12 Mauser v. Eastern Counties Railway Company 91 Marshall v. Newcastle and Berwick Railway Company ... 38 Marshall 15. Yorkshire, &c.. Railway Company 152 Martin r. Great Northern Railway Company 53 M'Cartau r. North-Eastern Railway Company 168 McCawley i). Furness Railway Company 109 Mitchell V. Lancashire and Yorkshire Railway Company . . , 150 Morgan v. Sim 25 Mottram V. Eastern Counties Railway Company 119 Munster v. South-Eastern Railway Company 148 Murgatroyd v. Blackbiiru aud Over Darwen Tramway Company 60 Murray 17. Metropolitan District Railway Company ... 31, 80 Mytton i;. Midland Railway Company 151 N. Nicholson v. Lancashire and Yorkshire Railway Company 51 North British Railway Company v. Wood 106 O. Osborne v. Loudon aud North- Western Railway Company 46 P. Parker i). Soiith -Eastern Railway Company 160, 161 Patscheider v. Great Western Railway Company 149 P.ittinson «. Midland Railway Company 55 Plielps V. London and North -Western Railway Company... 151 Philadelphia Railway Company V. Spearen 2 Phillips V. London and South-Western Railway Company 133 Pickard r. Smith 54 Potter V. Metropolitan District Railway Company 134 Poulton V. London and South-Western Railway Company 45 Table of Ca.s-e.s-. xiii Pounder V. North -Eastern Railway Couipauy page 60 Praeger v. Bristol and Exeter Railway Company ... lUU, 101 PuUing- V. Great-Eastern Railway Company 135, 142 Pym u. Great Northern Railway Company 138 R. Radley v. London and North-Western Railway Company 7 Railway Commissioners of Victoria, Coultas r 20 Readhead V. Midland Railway Company 41, 89 Reed v. Great Eastern Railway Company 144 Reynolds v. North-Eastern Railway Company 130 Richards v. Great Eastern Railway Company 78 Richards v. Loudon, Brighton, and South Coast Railway Company 148.149,155 Richardson v. Metropolitan Railway Company Rideal r. Great Western Railway Company Roberts v. Eastern Counties Railway Company Robinson v. Cone Robson V. North-Eastern Railway Company Roche V. Cork, Blackrock, &c.. Railway Company Rogers r. Rhymaey Railway Company Rose V. North-Eastern Railway Company Rowntree V. Richardson, Speuce, and Co Russ V. War Eagle 40 72 104 108 14 96 1.58 QQ 97 115 S. Scott V. London Dock Company 26, 31 Self V. London, Brighton, and South Coast Railway Company 32, 129 Shepperd r. Midland Railway Company 55 Siner and wife V. Great Western Railway Company 95. 97 Skinner v. London, Brighton, and South Coast Railway Company 29,39, 84 Skipwith (!. Great Western Railway Company 1<)0 Smith V. Great Eastern Railway Company ''4 Smith V. London, &.(i., Docks Company 3(> xiv Table of Cases. Smith tJ. South-Eastern Railway Company page 133 Southcote V. Stanley 35 Stevenson, Henderson u Ill Stewart v. Great Western Railway Company 108, 111 Stewart v. London and Nortli-Westem Railway Company 147 Stimpson v. Wood 141 Stockdale v. Lancashire and Yorkshire Railway Company 121 Stokes V. Eastern Counties Railway Company 43, 89 St urges -u. Great Western Railway Company 51 Sullivan -u. Waters 34 Sykes v. North -Eastern Railway Company 141 T. Talley V. Great Western Railway Company 154 Tebbutt V. Bristol and Exeter Railway Company 34 Thomas v. Rhymney Railway Company 125 Toomey v. London, Brighton, and South Coast Railway Company 31, 53 Tuff v. Warman 5 V. Van Toll v. South-Eastern Railway Company 158 Yaughan v. Taff Vale Railway Company 2 W. Waite V. North-Eastern Railway Company 14 Walker v. Great Northern Railway Company 25 Warburton v. Midland Railway Company 77 Warren v. Pittsburg Railway Company 40 Watkins v. Great Western Railway Company 35 Welfare v. London. Brighton, and South Coast Railway Company 28 Welsh V. London and North-Western Railway Company . . . 157 Wharton and wife v. Lancashire and Yorkshire Railway Company 103 Table of Cases. White r. South-Easlern Railway Company page 153 Whitehonso v. Midland Railway Company 120 Wilby V. Midland Railway Company 66 Withers v. Great Northern Railway Company 92 Wood, North British Railway Company v 106 Wood^ate v. Great Western Railway Company 166 Wright V. Groat Northeni Railway Company 66 Wright V. Midland Railway Company 69 Wriglii. :j;. Midland Railway Company 126 Wybom v. Great Northern Railway Company 92 Z. Zuuz V. South-Eastern Railway Company 153 THE LIABILITY OF RAILWAY COMPANIES NEGLIGENCE TOWARDS PASSENGERS. CHAPTER I. GENERAL PRINCIPLES OF THE LAW OF NEGLIGENCE. Befoke cousideriug- especially the subject of the liability of railway companies for negligence towards passengers it will be necessary to give an abstract — as brief as the nature of the subject will permit — of the leading principles of the law relating to negli- gence generally. Railway cases have, of course, to be decided in accordance with these general principles, there being no special rules of law exclusively applic- able to them. As far as possible, however, railway cases will be selected to illustrate these principles, in order that the method and extent of their application to similar cases treated of in subsequent chapters may be more easily understood. Before going further, it is necessar}^ to have a clear idea of what is held in law to constitute negligence. Sect. 1. Definitions op Negligence. The most generally accepted definition of negli- Baron ,, ,. i-r> All -1 (• Alderson'b gence is that given by Baron Aiderson in the case of deflniHon. Negligence of Railway Gompanie.s Deflnition byWilles. J. Each case must be decided according to its own circum- stances. Exceptional care ex- pected from railway companies. Blyth V. Birmingham Waterworhs Go. {a), viz : — "The omission to do sometliing whicli a reasonable man, guided upon those considerations which ordinarily regulate the conduct o£ human affairs, would do, or doing something which a prudent and reasonable man would not do/' Willes, J. has defined negligence as being " the absence of care according to the circumstances/' (/>) and this seems, for ordinary purposes, a sufficiently clear, though somewhat wide, definition. It is appa- rent that what is or is not negligence must always depend on the whole of the facts and surroundings of each particular case. This is well put by an American judge, Agnew, J., in the case of The Philadelphia Railway Company v. Spearen (r) : " There is no abso- lute rule as to what constitutes negligence, that con- duct which might be so termed in one case being in another properly considered ordinary care ; nor in cases where it is concurrent will the same rule apply to adults and children. It is therefore always a ques- tion of fact for the jury, under the instruction of the court, as to the relative degree of care or the want of it, growing out of the circumstances and conduct of the parties." It follows from these definitions that where, as in the case of railway traffic, the circumstances are such that the consequences of negligence may be exceptionally disas- trous, the degree of care expected will be relatively high. («) 11 Ex.784; 25 L. J., Ex. 212. {b) Vaughan v. Taff Vale Baihoay Company, 5 H. & N. 679 (at p. 688). (c) 47 Peuu. St. 300 (at p. 305). Cuntrih iitory Negligence. To sustain an action for negligence it is necessary No action that the plaintiff should be someone towards whom )?^"ce unless . , a duty to use the person guilty of the negligent act owed a legal '''""'^ ^''«^ duty to use care. Such a duty arises in connection with the management of any land or premises when- ever the public are invited expressly or impliedly to come thereon. With railway companies this duty is bound to exist to a very considerable extent from the very natui'e of their business, and it extends towards all those who are lawfully on their premises. (As to who are^ and who are not^ lawfully on railway premises see post, cap. H., sect. 1.) Sect. 2. Contributory Negligence. Probably in the majority of actions against railway Contnbu- companies for negligence the defence of " contribu- senceafre- toi'y negligence " is set up — very frequently with defence, complete success. It is therefore necessary to explain exactly what is meant by the expression before the numerous cases considered in succeeding chapters can be properly understood. It is by no means always the case that an accident, though arising from negligence, is solely due to the acts or omissions of the defendant. Very often the series of events culminating in the accident includes imprudent acts or want of reasonable care on the part of the plaintiff himself, which have operated, though in conjunction with the negligence of the defendant, to cause the accident. The question then arises as to how far such acts relieve the defendant of 1 legal responsibility in the matter. Whore an accident is really due to the carelessness of the plaintiff himself B 2 Negligence of Railway Gompanies. ^ it would be obviously unjust to hold tlie defendant liable, even thougb the latter has been guilty to some extent of negligence ; but, further than this, it is a well established principle of law that, if the accident is the direct result of the combined negligence of both parties the plaintiff cannot make the defendant responsible. («) It must be clearly understood that the defendant will not be able to escape by merely showing that the plaintiff has been guilty of some negligence. To free himself from liability he must show that the carelessness of the plaintiff" has been an essential cause of the ^Jtcident — carelessness without which it would not have occurred ; and even then the defendant will be held liable if it can be shown that he was lacking in due caution by which the result of the plaintiff's carelessness could have still been averted, [h] «mtribu° °^ Judges and text-book writers have, from time to gmce^^^^' ti'^ie, made more or less successful attempts to give a strict definition of contributory negligence. Perhaps none of them, however, is entirely satisfactory and in harmony with all the approved decisions on the subject. Possibly the explanation most in accord with decided cases is that given by the American writers, Messrs. Shearman and Redfield {c) which runs as follows — " One who is injured by the mere negligence of another cannot recover any compensa- tion for his injury if he, by his own or his agent^s (a) Butterfield v. Forrester, 11 East. 60. (6) Davies v. Mann, 10 M. & W. -546. (c) " Law of Negligence," sect. 25, Srd edition. Contributory Negligence, ordinary negligence, proximately contributed to pro- duce the injury of which he complains, so that, but for his concurring and co-operating fault the injury would not have happened to him, except where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him." This enunciation of the rule seems on the whole to Expiana- nt m with most of the considered judgments m con- miebyKng- . . . lish judges. nection with these cases. For instance, in delivering the judgment of the Court of Exchequer Chamber, in the case of Tuff v. Warman (a) Wightman, J. says : wightman. — " It appears to us that the proper question for the jury in this case, and indeed in all others of the like kind, is whether the damage was occasioned entirely by the negligence or improper conduct of the defen- dant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence, or want of ordinary and common care and caution, that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened. In the first place, the plaintiff would be entitled to recover, in the latter not, as, but for his own fault, the misfortune would not have happened. Mere negligence or want of ordinary care or caution would not, however, disentitle him to recover, unless it were such that but for that negligence or want of ordinary care the misfortune would not have happened, nor (a) 2 C. B., N. S. 740 ; 5 C. B., N. S. 573 ; 27 L. J.. C. P. 322 aS57-8). 6 Negligence of Railway Goinpanies. if the defendant might, by the exercise of care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff." Brett, M.E. Similarly, in Davey y. London and South-Western Railway Company (a) Brett, M.R., remarks : — " Even though the defendants were guilty of negligence which contributed to the accident, yet if the plaintiff also was guilty of negligence which contributed to the accident, so that the accident was the result of the joint negligence of the plaintiff and of the defendants, then the plaintiff cannot recover ; it being understood that, if the defendants' servants could by reasonable care have avoided injury to the plaintiff, then the negligence of the plaintiff would not contribute to the accident." The rule To extract the pith of these rather lengthy ' expressions of the rule we may put it thus : — To disen- title the plaintiff to recover, his own negligence must be a proximate cause of the accident and the defendant must not have carelessly failed to avert its consequences. Meaning of gy -proximate cause is meant an essential and material "proximate J -l cause." cause — that is, some cause not altogether insignificant, without which the accident could not have happened. Of course it need not necessarily be the cause nearest in order of time to the result. The subject of proximate cause is considered more fully in sect. 3 of this chapter, of "contribu- -f* ^^^^ ^® useful to give here a few illustrations of genc^^^" the application of the doctrine of contributory neg- ligence as enunciated above. (a) L. R., 12 Q. B. D. 70, at p. 71 ; 49 L. T. 739 ; 52 L. J., Q. B. 665 (1883). Cfmtributory Negligence. A passenger on the Metropolitan Railway leaning out of the window to look at the signals, fell on the Une owing to the door flying open. The railway company alleged contributory negligence on his part in leaning against the carriage door, but the courts held that the plaintiif had not been guilty of con- tributory negligence. The act of leaning against the door, though doubtless a proximate cause of the accident, was not in itself a negligent act. (a) The door of a railway carriage kept flying open (owing to a defective fastening) and a passenger, after closing it several times, at last, in attempting to repeat the operation, fell out and was injured. At the original trial he obtained a verdict, but it was upset on appeal, the Court of Common Pleas tinding that, though the railway company had been guilty of negligence in respect of the defective fastening, the plaintiif had also been guilty of negligence in keeping on trying to close the door when he knew of its condition. Here then is an example of the accident j being the result of the combined negligence of plain- tiff and defendant — the plaintiff's act being a proxi- mate cause of the disaster, {h) The case of Radley v. London and North-WeMern comribu- ^ tory iieKli- Railu-ay Company {c) — 1874 — affords an excellent ?rence_of^^^ (•elled by ~~ subsoquent negiijrenoe • (a) Gee v. Metropolitan Raihvay Company, 28 L. T., N. S. of .inf.-n- 282 ; L. R., 8 Q. B. 161 ; 28 L. T., N. S. 282 ; 42 L. J., Q. B. '^*"' 105 ; 21 W. R. 504. (6) Adams v. Lancashire and Yorkshire Raihvay Company. 20 L. T., N. S. 850 ; L. R., 4 C. P. 739 ; 38 L. J., C. P. 277 ; 17 W. R. 884. (c) L. R., 1 App. Cases, 754; 46 L. J., Ex. 573 ; aud see also Negligence of Railway Companies. example of negligence on the part of tlie plaintiff being, so to say, cancelled by subsequent carelessness on the defendants^ part. A railway company was in the habit of taking full trucks from the siding of a colliery owner, and returning the empty trucks there. Over this siding was a bridge 8 feet high from the ground. On a Saturday afternoon, when all the colliery men had left work, the servants of the rail- way ran some trucks on the siding. All but one were empty, and that one contained another truck, their joint height amounting to 11 feet. On the Sun- day evening the railway servants brought on the siding many other empty trucks, and pushed forward all those previously left on the siding. Some resist- ance was felt; the power of the engine pushing the trucks was increased, and the loaded truck struck the bridge and broke it down. In an action to recover damages for the injury, the defence of con- tributory negligence was set up. The judge at the trial told the jury that the plaintiffs must satisfy them that the accident happened solely through the negligence of the defendants' servants, for that, if both sides were negligent, so as to contribute to the accident, the plaintiff could not recover. The jury found that the plaintiff had been guilty of contributory negligence, and judgment was accordingly entered for the defendants. The case was then carried through the various Courts of Appeal, with the not unusual " see-saw " Dowsett V. London, Tilbiirij, and Southend Railway Company, (1885) Times L. R. vol. 1, p. 326. Contributory Negligence. results. Tlio House of Lords finally decided that there must be a new trial, on the ground that the law on the subject of contributory negligence had not been sufficiently explained to the jury, the judge not having submitted to them the question as to whether the defendants could, by the exercise of reasonable care, have averted the result of the plaintiff's negligence. Lord Penzance, in his judgment, i-emarks {~,^^^l where contributory negligence is alleged against a child a less strict standard will generally be applied in testing whether it has been guilty of imprudence. To illustrate this : — In a regular thoroughfare, Examples, where the presence of persons of all ages might be expected, a barrier had been erected round the open flap-door of a cellar where painters were at work ; a little girl, prompted by not unreasonable juvenile curiosity^ leant against the barrier, which, being insecurely erected, gave way, and so caused her to tumble into the cellar. After being nonsuited at the original trial, she eventually recovered damages, it being held on appeal that the insecure barrier was evidence of negligence on the part of the defendants, and that the fact of the child leaning against it, taking into account her age, did not necessarily constitute contributory negligence, (a) No doubt if the injured person had been an adult she would have been held disentitled to recover. The case of Lynch v. Nurdin [h) affords an even stronger example of the extent to which the usual (a) Jeioson v. Gatti, 2 Times L. R. 441 ; see also Crocher v. Banhs, 4 Times L. R. 324. ib) 1 Q. B. 29. 12 Negligence of Railway Companies. standard of negligence has been modified in cases of children. A child seven years of age got into a cart negligently left unattended, and was injured. She recovered damages, although she had no right whatever in the cart, and was in reality a trespasser — a fact which would have certainly disentitled a person of more mature age from obtaining compensation. Perhaps this case goes somewhat further than is con- sistent with the majority of decisions, as the act of a child in entering the cart without permission can scarcely be deemed less incautious than interference by quite young children with a machine, in one case, (a) and a shutter in another, {b) left negligently in the public street, in both of which instances the juvenile plaintiffs were held to have been guilty of contributory negligence. But where the presence of young children unattended would not reasonably be anticipated, the defendant would doubtless be entitled to rely on the same standard of prudence and caution being applied as a test for contributory negligence on the part of the child as would be used in the case of an adult — seeing that the nature or locality of his business might fairly lead the plaintiff to take only such steps to prevent accidents as would suffice in the case of grown-up persons. If, however, as a matter of fact, the defendant should become aware of the plaintiff's helplessness and the consequently increased risk, he would doubtless be (a) Mangan v. Atherton, 14 L. T., N. S. 411 ; L. R., 1 Ex. 239; 35L. J., Ex. 161. (6) Hughes v. Macfie, 2 H. & C. 744 ; 33 L. J., Ex. 177. Contributory Negligence. 13 liable, unless he took reasonable precautions to modify the danger in proportion to the modified capacity of the plaintiff to avoid it. Take a hypothetical case of a young child travelling by train alone — a child so young that it could not be deemed negligence in it to let its hand fall between the hinges of the open carriage door. The porter comes round and closes the door in the usual manner, with the result that the child's haud is caught and iujured. Has the child any right of action in consequence ? We think not. It is not usual for such young children to travel without supervision, and, assuming that the porter had no notice of its presence and close proximity to the door, he was surely justified in closing the door in the usual way (if a porter ever is justified in closing a door in ^'the usual way " — which is questionable). In such a case the question of contributory negli- gence would really drop out of consideration, and the true ground of decision would be whether there was any e\ndence of negligence on the part of the porter, considering his knowledge, or power of knowledge, of the particular circumstances. A higher degree of caution than usual is expected from one who has become aware of the presence of a person of loss than average capacity to look after himself. The view here expressed is also maintained in a view of case decided by the American Courts : " We are satis- courts. fied that, although a child, or idiot, or lunatic, may to some extent have escaped into the highway, through the fault or negligence of his keeper, and so be improperly there, yet, if he is hurt from the negligence of the defendant he is not precluded from his redress. 14 Negligence of Railway Ootn'panies. If one know that sucli a person is on the highway, or on a railway, he is bound to a proportionate degreeof watchfulness, and what would be but ordinary neglect in regard to one whom the defendant supposed a person of full age and capacity, would be gross neglect as to a child, or one known to be incapable of escaping danger." {a) fled'tuh"*' Where a quite young child or other helpless person, tory Mgii- ^^Ji3,ble to look after himself in any way, is under the custodian*^ CRre of a porsou of ordinary capacity, who is guilty of contributory negligence in connection with an accident causing injury to his charge, it has been held that this contributory negligence of the custodian is so far reflected on to his charge as to disentitle the latter to recover compensation, though the defendant may have been guilty of neglect. This was the case in WaiteY. North-Eastern Railway Company (6), when a child, travelling in the care of its grandmother, was injured while being negligently carried by her across the line before an advancing train. The Court of Exchequer Chamber held that, though there was, of course, no contributory negligence on the child's part, it was, under the circumstances, " identified " with its grandmother, who had been guilty of contributory negligence, and was therefore unable to recover com- pensation in spite of the proven negligence of the railway company (c). [a] Bohinson v. Cone, 24 Yermont. 213, 224, ap. Cooley on Torts, 681 (quoted m a note to Pollock on Torts, p. 383). (h) 28 L. J., Q. B. 258 ; 4 E. B. & E. 719. (c) The doctrine of identification here referred to has, not long since (1887) been much criticised, and to a gi'eat extent Negligence mnst Ix' Proximate Cause of Injur ij. 15 It is often stated that " contributory negligence of contdbu- a third party is no defence." This is another way of fffnc* ••' 7 '' third party. expressing the well-recognised rule, that where the accident arises from the negh'gence of the defendant, operating in conjunction with that of some one other than the plaintiff, if the defendant's negligence was a proximate cause of the accident (in the sense in which we have explained ''proximate") he will remain liable. The " third party/' however, will also be liable. In fact either or both of them may be sued (a). Sect. 3. Cause and Effect : Negligence must be Proximate Cause of Injury. It will not necessarily be sufficient to prove that the injury must negligence relied on by the plaintiff was the original abiycon- source from which the injury arose, ihe tact that ne-iiRmt the injury would not have happened but for the act or conditions complained of, Avill not in itself entitle the plaintiff to recover. He must go further, and show that such act or conditions were the pro.cimate cause of the accident. The chain of events connecting cause and effect must be in clear and reasonable sequence — otherwise the original negligence may be held too remote. In fine, the accident must be such overruled ; but not to such a degree as to affect a case like the one imder under oonsidoraiion {vide Tlie Bernina, L. R., 13 App. Cases, 1 ; 57 L. J., Proh. 65). (a) Harrisonv. Greed Northern Railway Company, 3 H. I'i: C. 231 ; 33 L. J., Ex. 2t;t> ; 10 L. T., N. S. G21 ; 12 W. R. Iu81 ; Clarhe v. Chambers, 38 L. T. -454; 47 L. J., Q. B. 427; 3 Q. B. D. 327; 26 W. R. 613; and The Bernina (supra). 16 Negligence of Railway Companies. as, in the ordinary course of things, without straining the imagination, might reasonably be expected to result from the negligent act. " A person is expected to anticipate and guard against all reasonable conse- quences, but he is not, by the law of England, expected to anticipate and guard against that which no reason- able man would expect to occur/' (a) Metropoii' The casc of Jackson v. Metropolitan Railway company!^^ Company — decided in 1877 {h) — admirably illustrates this principle. The facts in that case were as follows : The plaintiff was travelling by the defendants' railway in a third-class carriage from Moorgate-street to Westbourne Park. By the time the train reached King's Cross all the seats in the compartment were occupied. At Gower-street Station three extra passengers got in, notwithstanding the plaintiff's remonstrances. At the next station (Portland-road) the three extra passengers still remained standing in the compartment, the door of which was opened, presumably by persons looking for room in the train, and then shut. Just as the train was starting from Portland-road some of the crowd of persons on the platform tried to enter the carriage, again opening the door. The plaintiff, then rising, held up his hand to prevent any moro persons coming in. After the train had moved, a porter pushed the people away and slammed the door to, just as the train was entering the tunnel. The plaintiff at that moment, owing to (a) Per Pollock, C.B., in Greenland v. Chaplin, 5 Ex. 248. (b) 37 L. T., N. S. 679 : 47 L. J., C. P. 303; 26 W. R. 175 ,• L. K, 10 C. P. 49 ; L. R., 2 C. P. D. 125 ; L. R., 3 App. Cas. 193. Negligence must be Proximate Cause of Injury. 17 the motion of the train, fell forward, and putting his hand on one of the hinges of the door to save himself, his thumb was caught and injured. For this injury he claimed compensation. At the trial, before Brett, J., the plaintiff recovered 50Z. damages, and the jury stated that they thought " that the accident was caused by the presence of the three extra persons in the carriage, and that they were there through the default of the company's servants." On appeal to the Court of Common Pleas, and subsequently to the Court of Appeal, this decision was upheld, although in the latter court the judges were equally divided. Cock- burn, L.C.J, and Amphlett, L.J, holding that there was evidence of negligence, and Bramwell, L.J. and Kelly, C.B. that there was not. The defendant company then appealed to the House of Lords and that tribunal finally (in December, 1877 — five and a half years after the date of the accident !) reversed the decision of the courts below, and ordered a nonsuit to be entered, the plaintiff in the original action having to pay the costs of the appeal and all the costs in the courts below. The Lord Chancellor (Cairns) in his Lord judgment in the House of Lords observes {a) : "I do juXnent. not find any evidence from which, in my opinion, negligence could reasonably be inferred. The negli- gence must in some way connect itself, or be connected by evidence, with the accident. It must be, if I might invent an expression founded upon a phrase in the civil law, incuria dans locum injuria'. In the present case there was, no doubt, negligence in the (a) 47 L. J., C. P. 306. c 18 Negligence of Railway Companies. company's servants in allowing more passengers than the proper number to get in at the Gower-street Station, and it may also have been negligence if they saw these supernumerary passengers, or if they ought to have seen them at Portland- road and not to have then removed them ; but there is nothing in my opinion in this negligence which connects itself with the accident that took place. If, when the train was leaving Portland-road, the overcrowding had any effect on the movements of the respondent, if it had any effect on the particular portion of the carriage where he was sitting, if it made him less a master of his actions when he stood up or when he fell forward, this ought to have been made matter of evidence ; but no evidence of the kind was given." Lord Blackburn, in his judgment, says: " The reasoning by which it is ''sought to say that the jury might legitimately connect the fact that the plaintiff's thumb was in the hinge of the door at Portland-road with the negligence at Gower-street seems to me a good example of what Lord Bacon means in his maxim when he says ; " It -were infinite for the law to consider the causes of causes and their impulsion one on the other" (a). From the difficulty which the courts experienced in deciding this case, and the diversities of judicial opinion, it would seem to be, so to say, just on the boundary line between the " proximate " and " too remote " divisions of damage. (a) See also Bullnerv. London, Chatham, and Dover Railway Company, 1 Times L. R., 534 decided expressly on this precedent. Negligence muH be Proximate Cause of Injury. 19 A case in which the damaere was more clearly too (Jiovcrr. ° . •' London anJ remote from the cause to sustain an action is that of south- Wenteru Glover V. London and South Western Railway Com- Ri'iwa> " Company. pany (a), 1867. The plaintiff, a passenger, was removed from the train by the company's ticket collector, under the erroneous belief that he had not a ticket. No more force than was necessary for the purpose was used. Plaintiff left a pair of race-glasses behind him in the carriage, and they were lost. He sought to recover damages for the loss of the glasses (as well as for the personal assault committed by removing him from the train). It was held, however, that the loss of the glasses was neither the necessary consequence nor the immediate result of the wrongful act of assaiilt, there being no proof that the plaintiff was prevented from taking his glasses with him. The case of Adams y. Lancashire and Yorkshire Rail- A^ianis r. Lancashiro way Company (h), 1869, in which the plaintiff, by bis ^|j^[j.g^^!j- excessive zeal in frequently trying to close a carriage door p^fy*^"™' with a defective fastening, fell out, and was hurt, offers another illustration in point. Although the fastening of the door was shown to have been defective, there was no adequate reason why the plaintiff should have kept on trying to shut it after he had once discovered that it was out of order, and it was held that he was not entitled to recover for the fall from the carriage, which was the result of his misplaced energy. The connection between the defective fastening and the (a) L. R., 3 Q. B. 25. [h) L. R.,4 C. P. 739; 38 L. J.,C. P. 277; 20 L. T.. N. S. 850 ; 17 W. R. 884. C 2 20 Negligence of Railway Companies. Coultas V. Railway Commis- sioners of Victoria. fall was lield to be too slight ; to quote from Lord Oairns's judgment in Jackson's case, there was no evidence of incuria dans locum injurise. In the case of Coultas v. The Railway Commissioners of Victoria [a), 1888, which came before the Privy- Council on appeal from the Supreme Court of Victoria, it would almost seem that the principle as to " remote- uess " was carried somewhat too far ; and certainly great hardship was inflicted by the decision upon the unfortunate plaintiffs. The facts were as follows : — The plaintiffs — husband and wife — were driving in their buggy in the vicinity of Melbourne, and had to cross the defendants^ line at a level crossing. The gate-keeper opened the near gates, and walked across the line to open the further ones, the plaintiffs follow- ing in their carriage. They had got partly on to the far set of rails when a train was seen approaching on that line. The gate-keeper directed them to go back, but Coultas, probably doubting the wisdom of attempt- ing to turn or back in face of the advancing train, shouted to the man to open the far gates, and drove on. He just managed to get across as the train, which was going at a rapid pace, came up, passing within a hair's-breadth of the back of the carriage. Meanwhile Mrs. Coultas, terrified by the perilous situation, had fainted, and, being in a delicate state of health at the time, the nervous shock which she sustained brought on a severe illness. The plaintiffs (a) L. R., 13 App. Cases, 222 ; 58 L. T. 390; 67 L. J., P. C. 69 ; 37 W. R. 129; and, in tlie Victoria Courts, 12 Vict., L. R. 895. Negligence must he Proximate Cause of Injury. 21 brought an action for damages, nnd the jury awarded 342Z. 2s. to the gentleman and 40(JZ. to his wife, finding that the defendants' servants negligently opened the gate and invited the plaintiffs to drive over the cross- ing when it was dangerous to do so, and that the plaintiffs could not have avoided what had occurred by the exercise of ordinary care and caution. The following three points were reserved for the decision of the Supreme Court of Victoria : — 1. Whether the damages awarded by the jury to the plaintiffs, or either of them, are too remote to be recovered ? 2. Whether proof of " impact " is necessary in order to entitle the plaintiffs to maintain the action ? 3. Whether the female plaintiff can recover damages for physical or mental injuries, or both, occa- sioned by fright caused by the negligent acts of the defendants ? The Supreme Court having answered all these questions in favour of the plaintiffs, the defendants appealed to the Privy Council, who reversed the judg- ment of the colonial courts. The reasons for this decision are set forth in the judgment as follows : (a) " Damages arising from mere sudden terror, unaccom- Jud^entof panied by any actual physical injury, but occasioning council. a nervous or mental shock, ctmnot, under such circum- stances, be considered a consequence Avhich, in the ordinary course of things, would flow from the negli- gence of the gate-keeper. If it were held that they can, it appears to their lordships that it would be {a) L. R., 13 App. Cases, 222 (at p. 225). 22 Negligence of Railway Companies. extending the liability for negligence much beyond what that liability has hitherto been held to be. Not only in such a case as the present, but in every case where an accident caused by negligence had given a person a serious nervous shock, thei-e might be a claim for damages on account of mental injury. The diffi- culty which often exists in cases of physical iujuries, of determining whether they were caused by the negli- gent act, would be greatly increased, and a wide field opened for imaginary claims. . . . It is remarkable that no precedent has been cited of an action similar to the present one having been maintained, or even instituted, and their lordships decline to establish such a precedent. They are of opinion that the first ques- tion, whether the damages are too remote, should have been answered in the affirmative, and on that ground, without saying that ' impact ' is necessary, that the judgment should have been for the defendants." corj^ectness rpj^-^ jjecision, it is submitted, cannot be considered doubled. altogether satisfactory. The Privy Council judges seem to have failed to distinguish between mental shock, in the sense of an emotion of the intellectual feelings, and nervous shock, as expressing a physical disorder of the nervous system. It is no doubt true that in the former case damages cannot be recovered, however deep the wound to the feelings may be, or however severely the consequent state of mind may re-act on the physical health ; and that damages are not to be awarded for mere grief and pain of mind is a generally accepted proposition. Nervous shock, however, in the sense explained above, is surely a natural and direct result of any sudden and violent Negligence must he Proximate Cause of Injury. 23 terror, quite independent of the " moral " feelings, and if the nature of the occurrence be such as to make the terror not unreasonable in an ordinary individual, damages should, it would seem, be as properly awardable as in a case of bodily hurt from direct impact, {a) In the case of Bell v. Great Northern Railway Ken r.oreAt Companv of Ireland (h), which came before the Irish ijiuiway . i-icrAi' 'ompany of courts (Exchequer Division on appeal) m 181H), the Ireland— ^ ^ _ . Decision in correctness of the decision in the preceding case was louitas's directly doubted, and the judges refused to be bound iipproved. by it. They seem to have been led to this determina- tion by somewhat the same argument as has been submitted above. The facts of the case were as \y.- follows : — While the plaintiff was travelling as a 'a' passenger in an excursion train over a portion of the defendants' line of railway, the train, which was too heavy to be carried by the engine up an incline, was divided by the defendants' servants, the carriage occupied by the plaintiff, with certain others, remaining attached to the engine. The hmder part of the train having thereupon descended the incline with great velocity, the engine was reversed, and with the remaining carriages (including that in which the plaintiff was seated) followed down the incline, also at a high rate of speed, until stopped with a violent jerk. In an action for injuries sustained by the (a) See the able eriticisin of tliis decision in Mr. Beven's " Law of Negligence" (i». 67, ft seq.) referred to and approved by the Irish Court in the next quoted case. (b) 26 L. R., Ir., 428. quer. 24 Negligence of Railway Companies. plaintiffj it was proved that she was put in great fright by the occurrencej and that she suffered from nervous shock in consequence of such fright. She was incapacitated from performing her ordinary- avocations, and medical witnesses were of opinion that her symptoms might result in paralysis. The railway company relied on the precedent of Coultas's case^ but the court declined to follow it, Chief Baron Judgment of Palles statinsf : "The iudffment (in Coultas's case) Irish Court *= % -, -, , i • of Exche- assumes as a matter of law that nervous shock is something which affects merely the mental functions, and is not in itself a peculiar physical state of the body. This error pervades the entire judgment." The court referred to an unreported case decided four years previously in the Irish courts {Byrne v. Great Southern and Western Railway Company), in which the superintendent of telegraphs at Limerick Junction station recovered 325Z. damages for nervous shock caused by an engine running into and partially destroying his office ; he was not actually touched. The verdict in that case was upheld in the Court of Appeal, and the court elected to follow that decision in preference to that in Coultas^s case. They therefore held that the judge at the trial had rightly charged the jury, in directing them, that if great fright was in their opinion a reasonable and natural consequence of the circumstances in which the defendants had placed the plaintiff, and she was actually put in great fright by these circumstances, and if injury to her health was in their opinion a reasonable and natural consequence of such great fright and was actually occasioned thereby, damages for such Amount of Proof Necessary. 25 injury would not be too remote, and might be given for them. Where a prey-naiit woman was injured in a railway injuries to . child «( accident and the subsequently born miant brought an rmtre sa mere. action against the railway company on the ground that it had, in consequence of its mother's injuries, been permanently crippled and disabled, it was held that the damage was too remote, (a) Sect. 4. Amount op Proof Necessary to Sustain^^^m^ Action for Negligence. Before deciding whether or no it is possible under Bunien of ■t • • -PI- proof. the circumstances to sustain au action for negligence, it is always necessary in the first place to consider on whom rests what is termed the " onus of proof" — i.e., which party to the action will have to give affirmative evidence on the subject, the other party having to rebut such evidence. The general principle is clearly stated by Lord Wensleydale in the case of Morgan v. Sim {h) : " The party seeking to recover statement compensation for damage must make out that the by Lord . . , Wenslev- party against whom he complains was in the wrong, dale. The burthen of proof is clearly upon him, and ht.' ^ must show that the loss is attributable to the opposite >^ party. If at the end he leaves the case in even scales, and does not satisty the court that it was occasioned by the negligence or default of the other party, he cannot succeed." (c) Thus, in a recent case, where (a) Walker v. Great Northern Bailwaij Company, 28 L. R.. Ir., 69. {J}) 11 Moo. P. C. C. 307 (at p. 311). (c) See also Cotton v. Wood, 8 C. B., N. S. 568. 26 Negligence of Railway Companies. "Res ipsa loquitur." When this doctrine applies. Test sug- gested by Erie, C.J. the plaintiff liad beeu injured owing to the slamming of a railway carnage door, the court held that he must make out a prima facie case of negligence against the defendants by showing that there was something which the person shutting the door had omitted to do. (a) It is obvious,, therefore, that it is for the plaintiff to prove negligence affirmatively in the first instance, though of course the onns, of proof may, and usually does, shift from plaintiff to defendant, and vice versa from time to time at different stages of the case. Under certain circumstances this prima facie case of negligence which it is necessary for the plaintiff to make out may arise from the mere occurrence of the accident and consequent damage — it resting with the defendant to rebut the presumption of negligerjce so raised. In such cases it is considered that the occurrence speaks for itself — " res ipsa loquitur." As to what are the circumstances in which the doctrine embodied in this maxim applies, of course no definite rule can be laid down. Each case must be considered on its own merits. A good test for deciding whether a particular case comes within the scope of this principle is that implied in the judgment of Erie, C.J. in the case of Scott v. The London Docks Company (6) (1865). "Where the thing is shown to be under the management of the defendant or his servants, and (a) Cohen v. Metropolitan Railway Company, 6 Times L. R. 192 (1890). (fe) 13 L. T., N. S. 148 ; 34 L, J., Ex. 220 ; 3 H. & C. 596 ; 13 W. R. 410. Amount of Proof NecenKary. tlie accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." When it is doubtful whether the nature of the wiien n^gii- occurrence denotes antecedent neafligence the defen- f»h pUuntifr " " must prove. dant will receive the benefit of that doubt, and the plaintiff will be put to positive proof of the alleged want of caution. " If the facts pi'oved are equally consistent with the exercise and with the omission of proper care . . . the plaintiff must be nonsuited." [a) It is obvious that there must be many cases (espe- cially of railway accidents) where it is almost impos- sible for the plaintiff to give affirmative evidence as to the cause of the accident — knowledge which is frequently not even possessed by the defendants themselves. In such cases, before commencing an action the plaintiff should consider whether the acci- dent be one which does not usually happen if due care be taken. It must of course be remembered that different judges will sometimes take different views of similar cases, and what may be a clear 2>riiiid facie case of negligence against the defendant in the eyes of one judge may, with another, cause the plaintiff to be nonsuited on the ground that there is no evidence to go to the jury. Still it is something for plaintiffs to be thankful for that there are circum- (a) Gilbert v. North London Railway Company, 1 G. &. E. 31. 28 Negligence of Railway Companies. stances which will relieve them from having to prove acts or conditions of which they have no knowledge. Some idea of what are such circumstances will be gathered from succeeding chapters in connection with the various classes of railway accidents, but it has l)een thought well to refer here to one or two of the most important decisions which have special reference to this point, of'the^""'^^ In the case of Welfare v. London, Brighton, and "reslpL"' South Coast Raihvay Company (a) the facts were as loquitur." follows : — An intending purchaser was looking at a time-table in the London Bridge station when a plank and a roll of zinc fell through a hole in the roof and injured him, some person being at the time engaged at work on the roof. It was held that this fact alone was no evidence to go to the jury of negligence on the part of the company, as the fall of the zinc and consequent injury might have been the result of a pure accident, not arising from any want of care. It was not shown that there was any knowledge on the defendants^ part that the roof was unsafe, nor was it proved that the man on it was employed by them, and under these circumstances the mere happening of the accident was not deemed a sufficient proof of negligence on their part. The failure to show the responsibility of the railway company for the workmen's presence on the roof was no doubt some reason for coming to this conclusion, but this is certainly an extreme case against the prima facie inference to be drawn from the happening (a) 20 L. T. 743 ; 38 L. J., Q. B. 241 ; L. R., 4 Q. B. 693. I Amount of Proof Necessary. 29 of an accident, and it is very doubtful whether it would now be so decided. In an earlier decision (1844), in the case of Garpue V. London, Brighton, and South Coast Railway Com- pany {a), an opposite though perhaps equally extreme view was taken by the court. The cause of the accident was not clear, but it was probably attribu- table to the sinking of the permanent way through heavy rain. The main question for argument in the case had reference to the notice to be given to the defendants, but incidentally it was laid down that " in actions against a railway company for negligence in not safely carrying, the onus is upon the defendants to explain the cause of the occurrence, and to show that it was not occasioned by any misconduct or negligence for which they would be liable." This decision has, however, been more than once adversely criticised, and cannot now be held to be good law. A much better case to illustrate the doctrine of "res ipsa, loquitur " than either of the two extreme instances already given, is that of Skinner v. London, Brighton, and. South Coast Railway Company {b) — 1850 — in which the applicability of the principle will be perfectly apparent. The injury which was the subject of the action was due to a collision betwen two trains, both belonging to the defendant company, and under the control (or, as the event proved, not under the control !) of their servants. The judge (a) 13 L. J., Q. B. 133 ; L. R. 5 Q. B. 747. (6) 5 Ex. 787. 30 Negligence of Railway Companies'. (Pollock, C.B.) in his charge to the jury explicitly stated that the mere fact of such an accident occurring was prima facie evidence of neglect on the part of the railway company, and this direction was upheld on appeal. It is certainly difficult to imagine facts which would more fairly give rise to a presump- tion that the defendants had not exercised due care. Another good instance of the application of the principle of "res ipsa, loquitur" is afforded by the case of Gee v. Metropolitan Raihcay Company, (a) The plaintiff was injured by falling out of a train, owing to the door flying open while he was looking out of the window to see the lights of the next station. Though there was no evidence as to the construction of the door-fastening he obtained a verdict, the court holding that the mere fact of the door flying open under ordinary pressure raised a prima facie case of negligence against the company. Prima facie Although at a trial the judge may hold that the cas6 not ^ ^ ^ PI" necessarily mature of an accident raises a suincient case oi negli- enougn tor jury. gence to be left to the jury, it does not necessarily follow that they will accept this unsupported presump- tion as adequate ground on which to find a verdict for the plaintiff — even though the defendants may have given no rebutting evidence. The jury have a perfect right (which they sometimes exercise) to take their own view of the matter. Thus, in Bird v. Great Northern Railway Company (b) — 1858 — the judge (a) L. R., 8Q. B. 161; 28 L. T.. N. S. 282; 42 L. J., Q. B. 105 ; 21 W. R. 504. {b) 28 L. J. Ex. 3. Amount of Proof Nrress-arij. 31 considered that the mere fact of the engine of a passenger train running ofF the line was sufficient evidence of negligence to justify him in leaving the case to be dealt with by the jury. 'I'hough the railway- company were unable to give any ex])lanation which woiild rebut the inference of negligence which the judge thought had been raised, the jury found for the defendants, on the ground that there was *' not sufficient evidence of the cause of the accident." That the jury were within their right in so deciding is shown from the fact that, on appeal, the court declined to grant a fresh trial, (a) (a) For further examples of the application (or uou-applifation) of res ipsa loquitur, see the followiug cases : — Hanson v. Lancashire and Yorkshire Railway Company, 20 W. R. 297 (chain hroaking — no evidence of neghgence). Byrne v. Boadle, 9 L. T., N. S. 450 ; 2 H. & C. 722; 33 L. J.. Ex. 13 ; 12 W. R. 279 (falling of barrel of flour from ware- house — evidence of negligence). Kearney v. London, Brighton, and South-Coast Railway Company, 2i L. T.. N. S. 913 ; 40 L. J.. Q. B. 285 ; L. R., 6 Q. B. 759 (brick falling from railway bridge — evidence of negligence. Murray v. Metropolitan District Railway Comjniny, 27 L. T. 762 (falling of window — no evidence of neglgencei. Dawson \. Manchester, Sheffield, and Lincolnshire Raihcny Company, 5 L. T., N. S.. Ex. 682 (train running off line — held evidence of negligence. Scott V. London Dock Company, 13 L. T.. N. S. 148; 34 L. J.. Ex. 220 ; 3 H. & C. 596; 13 W. R. 410 (fall of bags of sugar being hoisted into warehouse — held evidence of negligence). Toomey v. London, Brighton, and South-Coast Railway Company, 3 C. B., N. S., 146 (passenger falling down steps of lamp-room, mistaking it for urinal — no evidence of negli- gence of company;. 32 Negligence of Railway Companies. CHAPTER II. SCOPE OF A RAILWAY COMPANY'S LIABILITY FOR NEGLIGENCE. Sect. 1. Towaeds whom does Liability Exist? Contract not Ii' ig important to bear clearly in mind that an action necessary to -"^ i> t found action against a railway company for negligence need not, ^ence. generally speaking, be founded on any breach of con- tract (a) . It has been clearly decided that the liability of a railway company for injuries arising from its own negligence is not confined to the cases of persons with whom the company has contracted, (b) The duty of care is owed, and consequently liability attaches, as regards all who are rightfully upon the company's premises or in their trains — though not, as we shall (a) In cases, however, where the damage is the result of the negligence of some company other than the one which issued the ticket to the passenger an action for negligence against the issuing company must be founded on a breach of their implied contract that due care and caution shall be exercised throughout the journey for which they booked him (see post, Cap. V.). (b) Foulkes v. Metropolitan Railway Company, 42 L. T. N. S. 345; L. R. .5 C. P. D. 157 ; Selfw. London, Brighton, and South-Coast Railway Company, 42 L. T. N. S. 179 ; Hooper v. London and North-Western Railway Company, 43 L. T. N. S. 570. Towards whom does Liability Exist ? 33 see, to the same extent in all cases. To put it con- versely, the only persons towards whom a railway company is not liable, in some degree, for injuries arising: from nesrlisfence are those who are in the posi- No duty of ° o 1 1 • care towards tion of trespassers. Such persons come at their own trespasserH. peril and must take any consequences (short of those caused by wilful injury) which may result from their unlawful intrusion. "Neman," says Lord Bramwell, *' can by his wrongful act impose a duty." (a) Those towards whom a company is liable — that is, Liability . towards per- who are not ivrongpuly present — may be conveniently sons nght- divided into two classes : Rent. 1. Persons on the company's premises by invita- tion (express or implied) for some purpose in which they and the company have a common interest. This class would of course include ordinary passengers, [h) and also, as we shall show, probably persons coming to meet or take leave of them. It would also embrace people coming to a station on bona fide business, to receive or despatch parcels, make inquiries, &c. (c) Towards this class a railway company's liability is not (as already stated) necessarily dfjieudent on any express or implied contract, but arises from the duty which they owe at common law to observe all reason- able care and caution in the conduct of their business and conveyance of their passengers. 2. Persons who have been permitted to come upon ^^^^^ds (a) In Dcf/f/ V. Midland Railway Company, 1 H. i**: N. 773. (6) As to wlio is a railway passoiiyor soo next section, (c) Cornman v. Eastern Counties Railway Company, 4 H. & N. 781 : 29 L. J.. Ex. 94 ; 33 L. T. 3U2. D " bare Uccnseea " 34 Negligence of Railway Companies. the premises simply for their own purposes, without any reference to those of the company, or, as they are usually termed, '^ bare licensees." Towards this latter class the company is not alto- gether free from liability, but that liability is of a very limited nature. Its extent is well indicated by Chief Baron Pigot in Sullivan v. Waters [a] — " A mere licence given by the owner to enter and use premises which the licensee has full opportunity of inspecting, which contain no concealed cause of mischief, and in which any existing source of danger is apparent, creates no obligation in the owner to guard the licensee against danger." Generally speaking, a "bare licensee" can only recover damages when his injury results from some concealed source of danger in the nature of a trap. Example of A common instance of a person occupying the posi- licensee.' tiou of a "bare licensee" on railway premises occurs where the general public, either by actual consent on the part of the authorities in response to a direct request, or by a prevailing custom at a particular station (such custom being within the knowledge of the railway authorities, and not objected to by them) are suffered to come upon the premises for the purpose of purchasing newspapers or using urinals, &c. Under such circumstances it is apparent that the person so permitted does not come for the mutual interests of (a) 14 Ir. C. L. R. 460. See also on this point Bolch v. Smith, 7 H. & N. 736; 31 L. J., Ex. 201 ; 10 W. R. 387; Corby V. Rill, 4 C. B., N. S. 556 ; Batchelor v. Fortescue, L. R., 11 Q. B. D. 474 ; Tebbtdt v. Bristol and Exeter Railway Company, 40 L. J., Q. B. 78; L. R., 6 Q. B. 73. Toicards whom does Liability Exist ? 35 himself and the railway company, but it is a purely "one-sided" benefit, and therefore liability would only attach to the company for injury caused by acts of gross negligence or defective conditions in the nature of a trap, {a) What is the actual legal position of a person using uabuity railway premises for the purpose of taking leave of or passengers' n • 1 n T ■> f ^ T friends meetmaf friends r Is such person a ' bare licensee, nsing . . „ . . station. permitted to come upon the premises for his own purpose only, without any reciprocal advantage to the company^ and with the comparatively slender rights against them above mentioned ; or does he occupy a higher position in some degree analogous to that of the actual passenger ? This question is dealt with in WatJcins v. Great Western Railicay Company, {h) in which case the plaintiff, while accompanying her daughter, an intending passenger^ to a train in Worcester station, knocked her head against a plank which had been placed across a footbridge, from hand-rail to hand-rail^ 4ft. 6in. above the ground, and on which a porter was standing cleaning a hang- ing lamp. It was broad daylight at the time. The Court of Common Pleas were di^^ded in opinion as to whether there was any evidence of negligence to go to the jury, but in his judgment Denman, J. said : "I am of opinion that a railway company keeping open a bridge over their line for the use of their passengers, is bound to keep that bridge reasonably (a) Sonthcote v. Stanley (.per Bramwell, B.}, 1 H. cV; N. 248 ; 25 L. J. Ex. 339. [b) 37 L. T., N. S. 193; 46 L. J.. Q. B. 817 25 W. R. 905. D 2 36 Negligence of Railway Companies. safe, and that if in practice the friends of passengers are allowed by the company's servants to see pas- sengers off by the trains, and to cross the bridge without asking special permission, the duty of the company in that respect cannot be put lower towards them than towards those whom they accompany for such not unreasonable purpose. I think that this view is consistent with the case of Oorhy v. Hill (a) and Smith v. London, 8fc., Docks Company. (b) I regard the passenger's friend so permitted to go along the bridge by constant acquiescence on the part of the railway [sic) as not being in the nature of a person barely licensed to be there, but as being invited to go, to the same extent as the passenger whom he accompanies, and who is there on lawful business in which the passenger and the company have both an interest." Sect. 2. Extent op Liability as Carriers op Passengers. In the previous section we briefly indicated the general scope of a railway company's liability towards all persons who may be, lawfully or unlawfully, upon their premises. It is now proposed to explain more particularly the extent of their liability towards actual passengers. Before doing so, however, it will be well to consider who is legally a passenger. Who is a ^ passenger has been defined (c) as "a person who senger?" a) Ante, p. 34. (b) L. R., 3 C. P. 330 ; 37 L. J., C. P. 217. (c) Shearman and Redfield's " Law o£ Negligence," sect. 488 3rd edit.). Extent of Liability as Carriers of Passengers. 37 undertakes, with the consent of the carrier, to travel in the conveyance provided by the latter otherwise than in the service of the carrier as such." As to what will constitute " consent " on the part of the carrier the decided cases go to show that this need not necessarily be actually expressed, as in the case of those to whom tickets have been issued, but it will be inferred from comparatively slight circumstances ; and it is submitted that a company would be liable in all cases in which they have acquiesced in the con- veyance of a person, unless they can show an intent to defraud on his part. The following cases will support this proposition : A railway company were in the habit of allowing Travelling the reporters of Bell's Life, when on duty, to travel transfor- free on their line. Harrison, the plaintiff, who was ticket. a reporter on the staff of this paper, was supplied with a ticket from the company, made out in the name of an editor or other officer of the paper, and it purported on its face not to be transferable, and also had on it a statement that any person, other than he whose name was on it, using the ticket, would be liable to the penalty which a passenger incurs by travelling with- out having paid his fare. The plaintiff, acting bona fide, presented this ticket at the station to the porter whose duty it was to examine tickets, who said "All right," and put him in a carriage. It did not appear that the porter knew him, but it was shown that on several occasions the plaintiff" and other reporters had travelled with similar tickets, made out in the names of persons other tlian those who used them, and that the persons whose names were on the tickets were 38 Negligence of Railway Companies. known to some of the station staff. At the trial the jury found for the plaintiff, and on appeal to the Court of Exchequer Chamber it was held that the evidence of the irregular use of the tickets being with the sanction of the superintendents, was evidence for the jury that the plaintiff was in the carriage with the licence of the company, and therefore lawfully — that there was " such evidence of a licence as would make it wrong to say that the plaintiff was a tres- passer/' (a) Travelling In a Subsequent case, decided in 1867,(6) the ti^Lr*^ defendant company was held liable in respect of injuries caused to a child over the age of three years while travelling with its mother, who had omitted to take a ticket for it. The defendant company appealed on the ground that the plaintiff was not lawfully a passenger, it being alle'ged that there had been con- cealment equivalent to fraud. The Court of Queen's Bench, however, upheld the verdict of the jury. The law on this point was very clearly laid down by Blackburn, J. in his judgment in this case. He says : — " I think that what was said in the case of Marshall V. Newcastle and BertvicJc Railway Company {c) was ■5, quite correct. It was there laid down that the right I which a passenger by railway has to be carried safely I does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on (a) Great Northern Railway Company v. Harrison, 10 Ex. 376; 23 L. J., Ex. 308 (1854). (b) Austin v. Great Western Railway Company, L. R., 2 Q. B. 442; 36 L. J., Q. B. 201. (c) 11 C. B. 662. Extent of Liahility a-s Carriers' of Passengers. 39 the company to carry him safely. If there had been fraud on the part of the plaintiff, or if the plaintiff had been taken into the train without the defendants' authority, no such duty would arise. Whether the mother's fraud could be treated as the fraud of the child, so as to bring the case within the principle of the cases which have been referred to, we need not now inquire. The averment of fraud which may be thought to make the plea valid is disproved. We must take it that the child, wathout fault and through an honest mistake on the mother's part, was taken into the train by the railway company, and received as a passenger by their servants with their autho- rity. ... It seems to me that a duty to carry safely arises under these circumstances." So in a case where a society had chartered a train Tickets from a railway company and issued to its members s'!xM>ty:^iio tickets for an excursion, the railway company was with com- held liable to these individual members, although there was no contract with them, [a] In giving judgment on appeal in the case of Foulkes Liability V. The Metropolitan District Eaihvay Company {h), a reception ot case in which the London and South- Western Railway Company had issued a combined ticket, and an accident had occurred to the plaintiff' while alighting from the Metropolitan District Company's train, Thesiger, L.J. said .''... Even assuming the (a) Skinner v. London, Brighton, and South-Coast Railtvaij Company, 5 Ex. 787. (b) 5 C. P. D. 157 (at p. 168) ; 49 L. J.. Q. B. 361 (at p. 368) ; 42 L. T.. N. S. 345 ; 28 W. R. 526. 40 Negligence of Railway Companies. American view. Inference from fore- going cases 1 contract of carriage ... to have been made between [the plaintiff] and the South-Western Com- pany exclusively, the defendants are still liable in respect of the wrongful act which led to the plaintiff's injuries, by virtue of their actual reception of him in their carriage. . The American courts have held (a) that the relationship of passenger and carrier may be estab- lished without either entry into the conveyance or payment of fare, and that a person in a waiting-room waiting for a carriage may be as much a passenger as though he were actually in the conveyance. From the cases which have been quoted, and many others decided on their authority, it is quite clear, as previously stated, that contract need not be the basis of a claim for compensation for injury, but that the mere acceptance of a person for conveyance by a railway company gives him, in the absence of fraud Ion his part, the position and rights of a passenger, and entails on the company so accepting him responsi- ., bility for his safety so far as reasonable care and caution can ensure it. The fact of a person having been in too great a hurry to take a ticket before starting, or travelling beyond the place to which his ticket applied, will not, in the absence of fraudulent intent, divest the company of that responsibility. Allowing a person to enter the train without first producing his ticket ; the existence of a custom for (a) Gordon v. New Town Railway Company, 40 Barb. 546; Buss V. War Eagle, 14 Iowa, 363 ; Warren v. Pittsburg Bail- way Company, 90 Mass. 227 ; Hamilton v. Caledonian Com- pany, 19 D. 457. 1 Extent of I/lahility as Carrtem of Passengers. 41 payment of fares to be permitted on arrival at the end of the journey ; or any evidence of genuine mistake on the part of the passenger as to the destination of the train in which lie was travelling, would no douht be sufficient to distinguish him from a mei*e trespasser. The question in such cases would always be, "Was there fraud on the part of the injured person ? If so, he cannot make the company liable for negligence; if not, they will be so liable. Railway companies are only liable towards passen- Railway *' ^ •' ■>■ companies gers for acts of negligence and not as insurers. This "j^l^g^l^g was finally decided in iitacZ/ierfcZ v. Midland Railwat/ Z'""'Z'2L' J J passengers Company {a) (1869). The facts in that case were *'*^^^y- shortly as follows : — The plaintiff, a passenger from Nottingham to South Shields on the defendants' I'ailway, had suffered an injury in consequence of the carriage in which he was travelling getting off the line and upsetting. The accident was caused by the breaking of the tire of one of the wheels of the carriage, owing to a latent defect in the tire, viz. : — an air-bubble in the welding — a flaw which was not attributable to any fault on the part of the manufac- turers, and could not have been discovered by inspection, nor by any of the ordinary tests previously to the breaking. The jury at the trial found that there was no negligence on the part of the defendants, who took every reasonable precaution in examining the tire before the journey. Lush, J. directed the jury, that, under these circumstances, the defendants were (a) 20 L. T. 628 ; 38 L. J., Q. B. 160 ; 17 W. R. 327 ; L. R. 2 Q. B. 412 ; 4 Q. B. 379. y 42 Negligence of Railway Gom'panies. not responsible for the accident, and tliey therefore found for the defendants, A rule for a new trial was granted on the ground that a carrier of passengers is bound at his peril to provide a roadworthy carriage, and is consequently liable if the carriage turns out to be defective, notwithstanding that the infirmity was of such a nature that it could neither be guarded against nor discovered. On the rule being argued before the Court of Queen's Bench, a majority (Lush and Mellor, JJ.) upheld the decision of the court below, but Blackburn, J. dissented on the ground that in principle, and by analogy to other cases, there is a duty on the carrier to the extent that he is bound at his peril to supply a vehicle in fact reasonably sufficient for the purpose, and is responsible for the consequences of his failure to do so, though occasioned by a latent defect ; and therefore that the direction to the jury was wrong, and that there should be a new trial. On appeal to the Court of Exchequer Chamber it was held, affirming the judgment of the Court of Queen's Bench, that the company was not liable in respect of the injury in question, there being no contract of warranty or insurance in the case of passengers that the carriage should be in all respects perfect for its purpose, that is to say, free from all defects likely to cause peril. In delivering the judg- ment of the court, Montague Smith, J. remarked ''It seems to be perfectly reasonable and just to hold that the objection well-known to the law, and which, because of its reasonableness and accordance with what men perceive to be fair and right, has been found appli- cable to an infinite variety of cases in the business of Extent of Liability an Carriers of Passengers. 43 life, viz. : the obligation to take due care, should be attached to this contract. We do not attempt to define, nor is it necessary to do so, all the liabilities which the obligation to take due care imposes on the carriers of passengers. Nor is it necessary, inasmuch as the case negatives any fault on the part of the manufacturers, to determine to what extent, and under what circumstances they may be liable for the want of care on the part of those they employ to construct works, or to make or furnish carriages and other things they use : (See on this point Grote v. Chester and Holyhead Raihcay Company) (a). Due care, however, undoubtedly means, having reference _to the nature of the contract to carry, a high degree of care, and casts on carriers the duty of exercising all vigilance to see that whatever is required for the safe conveyance of their passengers is in fit and proper order. But the duty to take due care, however widely construed, or however rigorously enforced, will not, as the present action seeks to do, subject the defendants to the plain injustice of being compelled by the law to make reparation for a disaster arising from a latent defect in tlie machinery they are obliged to use, which no human skill or care could either have prevented or detected." (6) It is therefore clear that the duty of railway com- Actual '' *^ extent of panics is to use all reasonable care to convey their liability (a) 2 Ex. 251. {b) See also Hyman v. Nye, U L. T. 919 ; L. R.. 6 Q. B. D. 685; Stokes v. Eastern Counties Raihvay Compatiy, 2 F. i F. 691; Francis v. Cochrell, 23 L. T., N. S. 466; 39 L. J.. Q. B. 291 ; L. R., 5 Q. B. 501 ; 18 W. R. 1205. # 44 Negligence of Railway Com,panies. ]^|^v pS'Ssengers safely, but they are not to be held liable for accidents arising from latent defects, tbe existence of wliich it was impossible to know of before tlie occurrence of tlie accident which they caused. In other words railway companies do , not insure the safety of their passengers ; but they undertake to do all that can be reasonably expected under the special circumstances of their important and hazardous busi- ness to prevent accident. TOmJan^y ^ company will not be held liable where an acci- °o°raifts'of dent is due to the acts of some independent person party.^° ^^^ engaged in extraneous work over which the company have no control, and which they have no reason to expect is being negligently carried on, so as to be a source of danger as regards their traffic. Thus, in Daniel v. Metropolitan Railway ComjJany (a), where the Thames Ironworks Company, under contract with the corporation of London, were engaged in placing a large iron girder across and between the walls form- ing the sides of the Metropolitan Railway, and the girder, overbalancing, fell upon a passing train, kill- ing and injuring several persons, the railway company were held not liable, on the ground that they might reasonably rely on the work being carefully and properly carried out by the contractors. Neither will a company be liable in connection with si^e'the °"*" acts of its officials which it was not within the scope Nor for acts of their scope of their duties. (a) L. R., 5 H. L. 45 ; 24 L. T., N. S. 815 ; 40 L. J., C. P. 121 ; 20 W. R. 37 (1871) ; and see also Latcher v. Bumney, 27 L. J., Ex. 155, in which it was laid down that " negligence may be disproved by showing another sufficient cause, as a stone wilfully put on the rail by a stranger. Extent of Liahility as Carriers of Passengers. 45 of their duties to perform ; for when a servant is engaged for a particular purpose {e.g., to discharge the duties of a railway porter) his capacities for such employment only are considered, and it would be obviously unjust if the company employing him were to be held liable for injuries he might cause by volun- tary acts entirely beyond the scope of his authorised labours, (a) (a) Poulton V. London and South-Western Railway Com- pany, 36 L. J., Q. B. 294 ; L. R., 2 Q. B. 534 (1867) ; 17 L. T., N. S. 11. 46 Negligence of Railway Companies. CHAPTER III. THE MOST USUAL CLASSES OF RAILWAY ACCI-- DENTS SPECIALLY CONSIDERED. Under the different sections of this chapter it is pro- posed to consider in detail the various kinds of accidents to which railway passengers are most usually exposed. It has been considered convenient to treat of them in the order of the usual stages of a railway journey. Sect. 1. Accidents at Stations. {a) steps and \\\ the case of Oshome v. London and North- Western Railway Company (a) (1888) the plaintiff", an Dangerous intending passenger, slipped on a flight of stone steps leading to the platform of Perry Bar station. These steps were worn and caked with frozen snow. The plaintiff admitted that he had noticed that they were dangerous, and therefore came down them carefully, holding the hand-rail. On behalf of the railway company it was suggested that this foreknowledge of their dangerous condition disentitled the plaintiff to [a) 57 L. J., Q. B. 618 ; L. R., 21 Q. B. D. 220 ; and see also Bridges v. North London Railway Company, 4.3 L. J., Q. B. 151 ; L. R., 7 H. L. 213 ; and Davis v. London, Brighton, and South-Coast Railway Company, 2 F. & F. 588. Accidents at Stations. 47 recover damages, as he had voluntarily incurred the risk of the descent. The County Court judge, how- ever, found that the accident was primarily due to the worn state of the steps, which was aggravated by the frosty weather, and that the steps had not Ijeen properly swept. Against this finding the company appealed, hut without success. Grantliam, J., in answer to the suggested application of the maxim "Volenti non fit injuria," referred tothe case of a stage- coach, one of the horses of which a passenger had observed to be vicious before he started on his journey. " Is he," says the learned judge, " bound not to travel by it ? or, if he does travel by it, and injury results during the journey, does he lose all remedy ? " In an earlier case {Crafter v. Metropolitan Bailwaif Company (1866) {a), though the facts were somewhat similar, a different decision was come to. The ])lain- tiff slipped and fell while ascending some brass-edged steps at King's Cross station; there was a wall on each side, but no hand-rail. Although two witnesses confirmed the plaintiff's statement that the ste])s Avere dangerous, and the only defence set u]) l)y the railway company was the fact that an average number of 43,000 persons had used the steps every month A\nth- out accident, it was held that there was no evidence of negligence on the part of the defendants. At first sight it seems hard to distinguish l)etween these two cases, but probably the unswept snow in the former one was the chief factor in deteriniiiing the (a) L. R., 1 C. P. 300 ; 35 L. J., C. P. 132 ; 14 W. R. 334. 48 Negligence of Railway Comjjanies. liability of tlie defendants. The court, no doubt rightly, held in the latter case that the defect alleged in the steps — viz., the use of brass-nosings (instead of lead as suggested) — the fact that this metal edging had become somewhat worn, and the absence of a hand- rail, did not necessarily constitute a dangerous state of things arising from negligence, but were points on which the railway company might to a certan extent exercise their own judgment. In the case of the snow-covered steps, however, there was obvious negli- gence on the part of the defendants in not having taken the very ordinary precaution of having the steps swept. (As to liability for uncleared snow on plat- forms see pos't.) Dangerous At a Small statiou between Birmingham and foot-bridges. ^ Wolverhampton, on the Great Western Railway, a wooden bridge was constructed across the line from platform to platform for the use of passengers. At each end of the bridge was a short flight of steps, theu a square landing, and then, at right angles, a longer flight of steps leading to the platform. The bridge itself was guarded at the sides by means of the customary '' cross-girders," but at each side of the short flight of steps there was only one girder, a con- siderable aperture measuring 7ft. 3in. by 4ft. 2in. thus being left. The only other way of passing from one platform to the other was either by crossing the metals or by going out of the station to a public bridge higher up the line and then coming back to the other platform. The wooden bridge had been used by thousands of persons, and frequently by the plaintiff, who, however, one night slipped, and, falling Accidents (it St