Breslin v Brennan

• Jurisdiction: Ireland
• Judgment Date: 19 March 1937
• Date: 19 March 1937
• Court: Supreme Court (Irish Free State)

Breslin v. Brennan.

THOMAS BRESLIN, an Infant, by PATRICK BRESLIN, his Father and next Friend, and PATRICK BRESLIN

Plaintiffs

and

SARAH BRENNAN, Defendant (1)

Supreme Court.

Negligence - Personal injuries - Re-starting of motor car - Infant on running-board without permission - Trespasser - Knowledge of driver that infant had previously tried to get on the motor car - Anticipation that infant would return - Danger apparent - Liability of defendant.

The plaintiffs, a boy of six years and his father, claimed damages for personal injuries caused by the negligence of the defendant, her servant or agent. The infant plaintiff's injuries were caused by his falling, or being thrown, from the running-board of defendant's motor car. On the date of the accident the car was stopped in a certain town to await the arrival of two passengers, there being one then in the car. While the car was stationary the infant plaintiff and another little boy, E. S., climbed upon the running-board at least once, and, according to some of the evidence, more than once. The driver ordered them off the car and they left, but returned a second time. The driver again ordered the infant plaintiff to go away and the latter got down and, in the driver's words in evidence,"disappeared from view." After the car had remained stationary for about 10 minutes, the two expected passengers came and got into the back of the car and neither of them saw the infant plaintiff or any little boy until after the accident. The driver then re-started the car, that being about three or four minutes after the infant plaintiff had "disappeared from view," and the infant plaintiff fell, or was thrown, from the running-board and suffered the injuries complained of. At the trial E. S., called for the plaintiffs, gave evidence that when the car was about to start, he and the infant plaintiff were on the running-board, that he got down and told the infant plaintiff to do so, but that, while the latter was doing so, the car started, at which moment the infant plaintiff was holding the front door handle on the driver's side and had one foot on the running-board. There was no evidence that the driver or any of his passengers knew that any boy was on the running-board when the car started.

The trial Judge refused to leave to the jury a question as to whether the infant plaintiff was guilty of negligence. The jury found the defendant guilty of negligence and assessed damages in £500 for the infant plaintiff and in £70 for his father (whose claim was for medical expenses incurred for his son) and judgment was entered accordingly. On an application by the defendant to have the judgment set aside and judgment entered for her. or, alternatively, for a new trial:

Held by the Supreme Court (Sullivan C.J., FitzGibbon, Murnaghan and Meredith JJ.; Geoghegan J. dissenting) that the jury were entitled to form the opinion that the driver should have known that in all probability the infant plaintiff had never left the vicinity of the motor car, and would be very likely to return to the running-board at any time; that therefore the driver was negligent in starting the car without satisfying himself that the infant plaintiff was not on the running-board, and accordingly the verdict of the jury could not be disturbed and the defendant's application must be refused.

Application, on behalf of the defendant, for an order that the verdict of the jury and the judgment entered thereon, dated the 4th day of November, 1936, be set aside and that in lieu thereof judgment be entered for the

defendant or, in the alternative, that a new trial be ordered, on the grounds:—1. That the verdict was without evidence. 2. That the verdict was contrary to the weight of the evidence. 3. That there was no negligence on the part of the defendant's driver. 4. That the learned trial Judge ought to have acceded to the request of counsel for the defendant (a) to put the question to the jury: "Was the plaintiff, Thomas Breslin, negligent?" or (b) to direct the jury that the plaintiff, Thomas Breslin, was negligent.

The facts of the case have been summarised in the headnote and are sufficiently stated in the judgment of the Chief Justice.

Cur. adv. vult.

Sullivan C.J.:—

This is a motion on behalf of the defendant that the verdict and judgment for the plaintiffs for £570, dated the 4th November, 1936, on the trial of this action by Mr.

Justice O'Byrne and a jury be set aside and discharged, and that in lieu thereof judgment be entered for the defendant with costs and with the costs of this appeal, or, in the alternative, that a new trial of this action may be ordered. The grounds stated in the notice of motion are:—[States grounds, printed ante p. 351.]

The plaintiff, Thomas Breslin, is an infant, who at the date of the accident in respect of which he sues, was six years old, the plaintiff, Patrick Breslin, is his father. The action was brought to recover damages for personal injuries sustained by the plaintiff, Thomas Breslin, on the 30th May, 1935, by reason of the negligence of the defendant's servant in the driving, control and management of the defendant's motor car, and for medical and surgical expenses incurred by the plaintiff, Patrick Breslin, in the treatment of his son.

The statement of claim alleged that on the date of the accident in question the plaintiff, Thomas Breslin, was standing on the running-board of the defendant's motor car at the Dispensary in Dungloe, in the County of Donegal, and that by reason of the negligence of the defendant's servant in driving the motor car he was thrown to the ground and injured. The particulars of negligence state that the driver started the car:—(1), with knowledge that Thomas Breslin was then on the running-board; (2), without satisfying himself that Thomas Breslin had stepped off the running-board; (3), with knowledge that Thomas Breslin had previously stepped on to the running-board and without satisfying himself that Thomas Breslin was then in a position of safety; and (4), without giving any warning of his intention to do so. They also state that while the car was in motion the driver compelled Thomas Breslin to jump off the running-board, and that the driver did not apply the brakes with sufficient force or in sufficient time to avoid injuring Thomas Breslin.

The defendant in his defence traversed the allegations of negligence and of damage, and pleaded contributory negligence on the part of Thomas Breslin.

The plaintiffs in their reply joined issue on the defence and pleaded that if the plaintiff, Thomas Breslin, was guilty of negligence the defendant's servant could by the exercise of reasonable care have avoided the accident.

At the trial Thomas Breslin gave evidence that he and another boy named Sharkey, aged seven, got up on the running-board at the right side of the defendant's car when it was stationary outside the Dispensary in Dungloe; that the defendant's driver Brennan was then sitting at the right side of the front seat with a man named Stanley Sweeney sitting beside him; that when he (Breslin) and Sharkey were standing on the running-board Sweeney looked in their direction but the driver Brennan did not; that before the car started two passengers, Mary Duffy and James Sweeney, got into the car from the left side; that Sharkey got down off the running-board and told him (Breslin) to get down, and that while he was getting down the car started and he fell off. On cross-examination he denied that he asked the driver for a ride on the car and was chased away, and he said he did not hear the driver tell him to go away. He denied that when getting on the car he was hiding so that the other people in the car could not see him, but he said that he wanted to get on the car without the other people in the car knowing it.

The boy Sharkey's evidence was that Breslin and himself got on the running-board, Breslin in front, that he (Sharkey) got down and told Breslin to do so, and that while Breslin was doing so the car started. He said that the window of the car beside the driver was open, that the passengers were entering the car while Breslin was getting on the running-board, that he did not know if any one in the car saw or spoke to Breslin, and that Breslin had a hold of the handle of the door and had one foot on the running-board and one down towards the ground when the car started.

On behalf of the defendant, Brennan the driver and Stanley Sweeney gave a different account of the events preceding the starting of the car. Brennan's account is given in answer to questions 315 to 322:—

• 315. "And while you were waiting did anything happen?""Yes, the little boy Tommy Breslin got on the running-board of the car."

• 316. Mr. Justice O'Byrne:—"On what side?" "On the driver's side."

• 317. "Did he ask you to give...