Cullen v Dublin United Tramways Company

• Jurisdiction: Ireland
• Judgment Date: 01 December 1920
• Date: 01 December 1920
• Court: Court of Appeal (Ireland)

Cullen v. D. U. T. C.

CULLEN

and

DUBLIN UNITED TRAMWAYS COMPANY (1896), Ltd. (1)

K. B. Div.

Appeal.

Negligence - Tramway Company and intending passenger - Accident occasioned by intending passenger jumping from tramcar in motion - Volenti non fit injuria - Duty of company to person wrongfully on car - Regulations - Effect of when not enforced.

The plaintiff, wishing to mount one of the defendants' tramcars, waited at one of the appointed stopping places. When the car approached the stopping place, it slowed down, but, as it was full, it did not stop. Whilst the car was in motion, a passenger already on the car jumped off, and the plaintiff swung himself on to the step of the moving car, seizing a bar with each hand, and placed one foot on the platform with a view to mounting further. The conductor, who had been inside the car collecting fares, thereupon came out on the platform, and closed the gate of the platform against the plaintiff, saying to him that the car was full and he could not get on, to which the plaintiff replied that he was already on the car, and that another passenger had got off. The conductor then said, "It does not matter; you must get off"; and when the plaintiff then asked that the car should be slowed down to enable him to alight, the conductor refused, Raving, as the plaintiff alleged, in an aggressive tone, "I will not; yon must get off." The plaintiff then jumped from the car, which had then increased its speed, and incurred injuries.

In an action against the company for damages for negligence, the Judge at the trial, at the close of the plaintiff's case, directed a verdict for the defendants. On an application by the plaintiff for a new trial:

Held, by the Court of Appeal (Ronan and O'Connor L.JJ., Sir J. Campbell C. dissenting), that the judgment of the King's Bench Division (Kenny and Moore JJ., Molony C.J. dissenting) refusing a new trial should be reversed, on the grounds that it was not sufficiently clear that the injuries of the plaintiff were incurred solely by his own voluntary act, and that there was some evidence fit to be submitted to a jury of breach of duty on the part of the defendants' servant.

Delany v. The Dublin United Tramway Co. (30 L. R. Ir. 725) considered.

Trial of Action.

This action was tried before Pim J. and a common jury on the 29th day of April, 1919. It was brought to recover damages for personal injuries sustained by the plaintiff by reason of the negligence of the defendants' servants on the 29th October, 1918,

when the plaintiff was lawfully on a tramcar of the defendants at Merrion Square, in the city of Dublin.

The facts are set out in the learned Judge's report of the trial, the material portions of which are as follows:—

John J. Cullen, the plaintiff:—I am a commercial traveller, and I live at Blackrock. On the 29th October, 1918, at about 5.50, I was at the corner of Merrion Square and Merrion Street, at the place where the outgoing trams stop. There is a notice up there which says: "Wait here for the trams." A tram came from the Pillar and slowed down as it came to the stopping point, but did not stop. A man got off. I jumped upon the footboard when he got down. I was on that part of the footboard which is behind the upright bar. He got off in front of the car; there were people on the platform. I stepped round the bar on to the front footboard. There was, as far as I recollect, a helper on the platform. I was holding the bar, and had put my left foot upon the platform. The conductor came from inside the car and caught hold of the iron gate and put it across. He said, "You cannot get on; the tram is full." I said I was on the tram and a passenger had got off, and why would he not let me on to the platform? He said, "It does not matter; you must get off." The tram continued to go on, and began to move faster. I asked him to slow the tram and I would get off. He said, "I will not, and you must get off," in an aggressive tone. I dropped and struck against the ground; no one came to my assistance. There were very few people in the neighbourhood. I got up and walked to Holles Street; got on the tram there. I took its number, 326. It was the next tram after the one from which I had fallen. An inspector boarded the car. I asked for the number of the previous car, as I had met with an accident. When I got home I saw a doctor.

Gross-examined—I had a good grip by both hands when I got round the upright bar; one hand was on the bar and the other on the ordinary horizontal bar. I would have been quite safe had I not been meddled with. I was ordered off and went. I was not shoved off. I was not allowed by the conductor to remain on the tram. He said, "I will not allow you to stay on the tram." I dropped off.

Thomas J. Foley—I had not known Cullen before the accident. I was on the car, standing on the back platform. As we approached Merrion Square we slowed down; we were going slowly. I heard the plaintiff saving, "When a passenger has got off, why will you not let me on?" He was on the step. The passenger had just got off before he jumped up. The conductor said, "You cannot get on; it is full." He then pulled the gate across. Cullen said, "If you stop or slaw the tram, I will get off." The conductor said, "I will not stop the tram; you will have to get off." I saw Cullen jump off.

Cross-examined—The tram was very crowded. The conductor was not on the platform when the passenger got off, and Mr. Cullen jumped on; he was inside the car.

Dr. Boland examined on behalf of the plaintiff.

Sir Arthur Chance was examined on behalf of the defendants.

Serjeant Sullivan asked me for a direction on the ground that there was no evidence of negligence on the part of the defendant company.

The bye-laws of the Tramway Company were put in, and it was argued by Mr. M'Grath that when the plaintiff was ordered to get off the tram he was bound to do so, as otherwise he would have left himself open to a prosecution for disobeying the bye-laws.

I came to the conclusion, first that there was no invitation by the defendants to any would-be passenger to get on the car while it is in motion; that the plaintiff jumped on to the car at his own risk. That he could have got off when first directed to do so without any risk; that he could well have remained where he was till the car stopped at the other corner of Merrion Square; that he was not bound to get off in the middle of the journey, and that, if he got off, he did so at his own risk; that there was no negligence on the part of the Tramway Company; and I accordingly directed the jury to find for the defendants.

The plaintiff based his application for a new trial on the grounds that there was evidence in support of the plaintiff's claim proper to be left to the jury, and that the learned Judge was wrong in withdrawing the case from the jury and directing judgment for the defendants.

The plaintiff appealed to the Court of Appeal (1).

Cur. adv. vult.

Moore J. :—

I was at first disposed to think that the plaintiff was entitled to have a finding from the jury as to whether or not there was a breach of duty towards him on the part of the defendants by reason of the conductor having in the first place acted improperly, and in the second place having thereby caused the injuries for which the plaintiff claims damages. But on consideration of the facts and of the authorities, I have come to the conclusion that the learned Judge was right in directing the jury as he did.

The negligence complained of must be established as a breach of duty, and it is important to see in what relation the defendants and the plaintiff stood to each other, for by that the duty must be measured.

The plaintiff's evidence shows that he thrust himself, in breach of the bye-laws, on to the step of the defendants' car while in motion. There was no invitation of any sort to him to enter the car at all. His intrusion was in breach of the law, and was made entirely at his own risk. Very shortly afterwards, and while he was still on the step, the conductor observed him, and at once told him, for reasons which seemed to him sufficient, that he would not accept him as a passenger, and drew the iron gate across between the step and the platform, with the plaintiff outside it on the step, thus cutting him off from entering the car, or even standing on the platform.

Cullen's original intrusion was itself a trespass, but one which could have been waived had the conductor accepted him as a passenger. However, once the conductor refused to do so, he remained a trespasser while on the car during the rest of the transaction; in other words, he was not lawfully there. If he had been a passenger, the duty of the defendants to him would have been on the highest plane; if a licensee, it would have been at least secondary; but it was lowest towards him as a mere trespasser. See judgment of Buckley L.J. in Norman v. Great Western Railway(1).

The duty to a trespasser is stated by Hamilton L.J. inLatham v. R. Johnson(2), quoting from Grand Trunk Railway v.Barnett(3):—"The owner is under a duty not to injure the trespasser wilfully: 'not to do a wilful act in reckless disregard of ordinary humanity to him,' but otherwise a man 'trespasses at his own risk.'"

Reading the dissentient judgment of Barry L.J. in Delany v.Dublin United Tramways Co.(4), to which I refer because it was relied on in the argument before us on behalf of the plaintiff, it is plain that the conductor was entitled to use force, reasonable and proper, if necessary for removing Cullen from the car, and the Lord Justice only considered that it might be a question for the jury whether in that case the conductor used force disproportionate to the mischief or the gravity of the trespass, and therefore unreasonable. The other two members of the Court held that the conductor was justified in pushing the trespasser off the car.

In the present action the conductor's rights included...