O'Brien v Waterford County Council

• Jurisdiction: Ireland
• Court: Supreme Court (Irish Free State)
• Judgment Date: 16 July 1926
• Docket Number: (1924. No. 1986.)
• Date: 16 July 1926

Supreme Court.

(1924. No. 1986.)

O'Brien v. Waterford Co. Council

MICHAEL O'BRIEN

Plaintiff

and

THE COUNTY WATERFORD COUNTY COUNCIL, Defendants (1)

Negligence - Repair of highway - Broken bridge - One half of the width temporarily repaired - Timber fence between repaired and unrepaired portions - Unlighted at night - Necessity for warning - Accident - Liability of road authority - Misfeasance - Non-feasance.

Motion by the defendants for an order that the verdict given and judgment directed on the trial of the action before Johnston J. and a common jury be set aside, and, in lieu thereof, that judgment be directed to be entered for the defendants.

The action was brought by Michael O'Brien, merchant, Pouldrew, Waterford, against the Waterford County Council for damages for personal injuries caused on November 2nd, 1923, by the negligence of the defendants.

Prior to the date in question, a bridge on the road leading from Clonmel to Pouldrew had been blown up and completely destroyed. The defendants, as the road authority, had reconstructed the bridge on the left-hand side, leading from Clonmel to Pouldrew, and had made a road across the reconstructed portion to a width of about one-third of the road prior to its destruction. The plaintiff alleged that the defendants wrongfully and negligently suffered the roadway on the right-hand side of the bridge to remain dangerous and impassable, and negligently omitted properly to fence off the dangerous portion from the undamaged portion of the road as it approached the bridge, or from the reconstructed portion of the road leading across the bridge, and so wrongfully reconstructed, repaired, and maintained the bridge and road that the same were dangerous to traffic. The plaintiff also alleged that the defendants were guilty of negligence in failing to give any warning or indication to persons approaching the bridge that same was dangerous and out of repair, and in failing to place any lights on same at night.

On the night of November 2nd, 1923, the plaintiff, who was driving in a motor along the road from Clonmel to Pouldrew, drove on to the unrepaired portion of the bridge, was thrown violently from the car, and suffered severe personal injuries.

The defendants in their defence pleaded that the temporary wooden construction which they had erected to carry the road a width of ten feet across portion of the gap which had been caused by the destruction was properly constructed and maintained, and was fenced off from the portion of the gap over which the same did not extend in such a manner as to afford a proper protection to all persons using the road and exercising ordinary care and caution. The plaintiff used the road and temporary construction with the full knowledge that the construction did not extend across the whole width of the gap, and with full knowledge of, and in spite of, a public warning given by the defendants that the bridge had been destroyed, and that the road was in consequence unsafe for traffic and impassable save at the sole risk and responsibility of the persons using the same. The defendants further pleaded that the injuries sustained by the plaintiff were solely due to his own negligence and default by driving at an excessive speed on the wrong side of the road and without lights and keeping any look-out. As an alternative defence they objected in point of law that the statement of claim disclosed no cause of action; that the injuries complained of were alleged to have been caused and were caused (if at all) by reason of the non-feasance of the defendants.

The evidence given on behalf of the plaintiff was to the effect that on the road from Clonmel there was a decided drop towards the bridge, and that quite close to the bridge there was a blind corner with a hedge and bank. As soon as the driver of the car saw the bridge he put on both brakes, but he could not keep the car from striking the post running across the bridge. The car went forward, and the front wheel went over the gap underneath. The lights and the brakes of the car were perfect. The driver was approaching the post at about ten miles an hour. There was no light at the bridge, and neither the plaintiff nor the driver saw any warning notice on the occasion. The fence separating the gap from the repaired portion of the bridge was constructed of old and decayed wood.

At the conclusion of plaintiff's case counsel for the defendants asked for a direction on the ground that there was no misfeasance; that it was only a case of non-feasance. The learned Judge refused the application.

From the evidence given on behalf of the defendants it appeared that a great number of bridges in Co. Waterford were destroyed in July, 1922. In April, 1923, the Council repaired the bridge in question on the left side coming from Clonmel, so that persons coming from that...