Cooke v Midland Great Western Railway Company of Ireland

• Jurisdiction: Ireland
• Judge: H. L.
• Judgment Date: 01 March 1909
• Court: House of Lords (Ireland)
• Date: 01 March 1909

[HOUSE OF LORDS.] COOKE (INFANT) BY HIS FATHER AND FRIEND (PAUPER) APPELLANT; AND MIDLAND GREAT WESTERN RAILWAY OF IRELAND RESPONDENTS. 1909 March 1. LORD MACNAGHTEN, LORD ATKINSON, LORD COLLINS, and LORD LOREBURN L.C.

Railway Company - Defective Fence - Negligence - Turntable - Infant Trespasser - Invitation to Danger.

A railway company kept a turntable unlocked (and therefore dangerous for children) on their land close to a public road. The company's servants knew that children were in the habit of trespassing and playing with the turntable, to which they obtained easy access through a well-worn gap in a fence which the railway company were bound by statute to maintain. A child between four and five years old playing with other children on the turntable having been seriously injured:—

Held, that there was evidence for a jury of actionable negligence on the part of the railway company.

The decision of the Irish Court of Appeal, [1908] 2 I. R. 242, reversed, and the judgment of Lord O'Brien C.J. and the decision of the King's Bench Division (Ireland) restored.

THE appellant by his father brought an action against the respondents for an injury sustained on the company's land in Meath under the circumstances stated in the head-note, the details of which are fully discussed in the judgments in this House. At the trial before Lord O'Brien C.J. the jury found a verdict for the plaintiff for 550l., and judgment was entered accordingly. The jury found that the fence was in a defective condition through the negligence of the defendants; that the plaintiff was allured through the hedge and up to the turntable by the negligence of the defendants; and that it was by reason of the defendants' negligence and as the effective cause of it that the misfortune occurred. That judgment was affirmed by the King's Bench Division in Ireland (Palles C.B. and Johnson J., Kenny J. dissenting) and was afterwards set aside by the Court of Appeal in Ireland (Sir S. Walker L.C., FitzGibbon and Holmes L.JJ.). Hence this appeal by the plaintiff.

1908. Nov. 23, 24, 30. Barry, S.-G. for Ireland, and Dudley White (both of the Irish Bar) (Mark Stebbing with them), for the appellant. The railway company was guilty of a breach of statutory duty in not properly fencing their property. The duty is strictly imposed by the Regulation of Railways Act, 1842 (5 & 6 Vict. c. 55), s. 10, by the Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), ss. 50 and 68, and also by the Irish Railways Act of 1864 (27 & 28 Vict. c. 71), s. 15.

There was also negligence at common law. The general principle is stated by Lord Denman C.J. in Lynch v. Nurdin^F1, who said it was negligent to have anything dangerous where it is “extremely probable that some other person will unjustifiably set it in motion to the injury of a third.” In that case it was a child who was injured. There are many cases in the books where liability to damages has been held to attach where dangerous articles have been left accessible to children: Harrold v. Watney^F2, where a defective fence was the source of mischief, and Rigby L.J. expressed approval of Lynch v. Nurdin.^F1 In the American case of Keffe v. Milwaukee and St. Paul Ry. Co.^F3 the circumstances were precisely similar, the accident being to a child trespasser playing with a turntable. The company were held responsible. In Williams v. Eady^F4 a schoolmaster was cast in damages for leaving phosphorus accessible to a boy. In Sullivan v. Creed^F5 the owner of a loaded gun left on his own land, on which a boy trespassed and was injured by the gun, was held liable. To a like effect are Jewson v. Gatti^F6 and Crocker v. Banks.^F7 Clark v. Chambers^F8 is even more decisively in the appellant's favour. A person unlawfully erected a barrier and another person removed part of it, which was armed with spikes, and left it in the road. A passer by was injured by the spikes and held entitled to damages from the person who set up the barrier, though his doing so was not the proximate cause of the accident. Cockburn C.J. in that case expressed disapprobation of Mangan v. Atterton^F9, where a child of four was injured by a machine left unguarded in the market place, but, being a trespasser in meddling with the machine, was held not to be entitled to damages. Hughes v. Macfie and Abbott v. Macfie^F10, where children were similarly disentitled, were held by Cockburn C.J. to be at variance with the authorities. Illidge v. Goodwin^F11 was very like Clark v. Chambers^F12 in that the injury was caused by a third person who had whipped the horse which damaged the plaintiff's window. “If,” said Tindal C.J., “a man chooses to leave a cart standing on the street, he must take the risk of any mischief that may be done.” Engelhart v. Farrant^F13 is an application of these words. In Lygo v. Newbolt^F14 the plaintiff was himself to blame for unauthorized conduct; and in McDowall v. Great Western Ry. Co.^F15 the van was in a safe position and the accident would not have happened but for the interference of trespassers, and the defendants were held not liable. Dublin, Wicklow, and Wexford Ry. Co. v. Slattery^F16, in this House, is distinctly in favour of the appellant on account of the acquiescence of the railway company in the use of the line which led to the accident. Similar acquiescence must be inferred in the present case. Here surely there was an invitation to enter and play with a dangerous instrument. There was a gap in the fence with a well-beaten track leading to the turntable, which was left unfastened and seemed to be provided for the very purpose of a merry-go-round for children. There was evidence that this was clearly recognized by the company's servants.

Ronan, K.C., and Featherstonhaugh, K.C. (Piers Butler with them) (all of the Irish Bar), for the respondents. The railway company has not been guilty of negligence either by breach of a statutory duty or at common law. There is, in fact, no distinction in this respect. In Ricketts v. East and West India Docks Ry. Co.^F17, Manchester, Sheffield, and Lincolnshire Ry. Co. v. Wallis^F18, and Singleton v. Eastern Counties Ry. Co.^F19 the common law is stated to be the measure of statutory liability. The 68th section of the Railways Clauses Act, 1845, was stated by Jervis C.J. to have been passed in place of the 10th section of the Act of 1842: Manchester, Sheffield, and Lincolnshire Ry. Co. v. Wallis.^F20 Sect. 50 of the Act of 1845 was not intended to prevent trespass, but as a safeguard against falling on the line. There is, in truth, no enactment against trespass on railways generally, and the common law is still the measure of liability. Moreover, s. 68 is directed not towards the public, but to adjoining landowners, as the words “if the owners shall so require” plainly shew. The Irish Act of 1864 is equally inapplicable, as it prescribes a period of five years for the neighbouring owner to complain.

The common law duty is to fence in and not to keep out, to prevent cattle from straying. In Hounsell v. Smith^F21, for example, there was held to be no duty to fence an excavation; and no damages were recovered in Singleton v. Eastern Counties Ry. Co.^F22, where a small child had found its way to the line and was injured: see also Binks v. South Yorkshire Ry. Co. and River Dun Co.^F23 Cummings v. Darngavil Coal Co.^F24, Devlin v. Jeffray's Trustees^F25, and Prentice v. Assets Co.^F26, where the authorities are discussed by Lord Shand, are Scottish cases to the like effect. In Hughes v. Macfie^F27 the danger was close to the road and a child was injured, but no damages were recovered. Clark v. Chambers^F28 was a case of public obstruction. In Bird v. Holbrook^F29 a man set a spring gun on his land without warning and was held liable, there being an intention to injure trespassers. Slattery's Case^F30 is inapplicable because the railway company allowed people to cross the line for its own convenience. Holmes L.J. below expresses the case forcibly: “It would be a novel doctrine that a trespasser on property is converted into a licensee by the mere fact that the owner has not turned him off when he was committing similar acts of trespass.” In Blount v. Layard, reported with Smith v. Andrews^F31, Bowen L.J. said, “Nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused,” and continues: “The jury ought to be warned against extracting out of it an inference unfavourable to the person who has granted the indulgence.” This language was approved in this House by Lord Macnaghten in Simpson v. Attorney-General^F32, and Farwell L.J. expresses himself to a similar effect in the Stonehenge case, Attorney-General v. Antrobus.^F33

The evidence of acquiescence is weak and no case of anything like invitation is made out. In this as in all cases the trespasser must...