Darius Ryan v The County Council of The County Tipperary, North Riding

JurisdictionIreland
CourtKing's Bench Division (Ireland)
Judgment Date17 May 1912
Docket Number(1911. No. 4958.)
Date17 May 1912

K. B. Div.

Before PALLES, C.B., KENNY and WRIGHT, JJ.

(1911. No. 4958.)

DARIUS RYAN
and

THE COUNTY COUNCIL OF THE COUNTY TIPPERARY, NORTH RIDING.

Bull's CaseUNKUNKUNK 68 J. P. 415; 67 J. P. 37; 19 Times L. R. 64.

Clements v. County Council of TyroneIR [1905] 2 I. R. 546.

Clements v. The Tyrone Co. CouncilIR [1905] 2 I. R. 415.

Clements v. Tyrone County CouncilIR [1905] 2 I. R. 415, 542.

Cowley v. Newmarket Local BoardELR [1892] A. C. 345.

Coyle v. Great Northern Railway of IrelandUNK 20 L. R. Ir. 409.

Dawson v. The Bingley U. D. C.ELR [1911] 2 K. B. 149.

Harbinson v. Armagh County CouncilIR [1902] 2 I. R. 538.

Hill v. Totenham Urban District CouncilUNKUNK 15 T. L. R. 53, and 79 L. T. (N. S.) 495.

Hill v. Tottenham Urban District CouncilUNK 79 L. T. (N. S.) 495.

M'Clelland v. Manchester CorporationELR [1912] 1 K. B. 118.

Maguire v. Corporation of LiverpoolELR [1905] 1 K. B. 767, at p. 781.

Penny v. Wimbledon Urban District CouncilELR [1898] 2 Q. B. D. 212.

Russell v. The Men of DevonUNK 2 Term Rep. 667.

Russell v. The Men of DevonENRENR 8 Exch. 319; 9 Exch. 607.

Shoreditch CaseENR 2 T. R. 667.

Shoreditch CaseUNK 68 J. P. 415.

Shoreditch v. BullUNK 67 J. P. 37.

Shoreditch v. BullUNK 68 J. P. 415.

Slattery v. Dublin, Wicklow, and Wexford Railway Co. 3 A. C. 1155.

The Bingley Urban District CouncilELR [1911] 2 K. B. 149.

The Mayor of Shoredich v. BullUNK 68 J. P. 415.

The Mayor of Shoreditch v. BullUNKUNKUNK 68 J. P. 415; 20 T. L. R. 254; 90 L. T. (N. S.) 210.

The Mayor of Shoreditch v. BullUNKUNKUNK 68 J. P. 415; 67 J. P. 37; 19 Times L. R. 64.

Local authority — Liability, when interfering with road for the purposes of repair — Portion left open for use of public to be kept reasonably safe — Non-feasance while executing repairs.

392 THE IRISH REPORTS. [1912. K.11` Div. DARIUS RYAN v. THE COUNTY COUNCIL OE THE 1912. COUNTY TIPPERARY, NORTH RIDING. April 25, 26, 29. May 17. (1911. No. 4958.) Local authority—Liability, when interfering with road for the purposes of repair—Portion left open for use of public to be kept reasonably safeÂNon-feasance while executing repairs. A County Council who were under an obligation to maintain and repair the public roads within their jurisdiction, were engaged in repairing a portion of one of such roads, and for this purpose employed a steam-roller to roll down and 1 evel in the new metal ; these repairing operations were confined to a portion half the width of the road, the other half being left open for public traffic. A man driving in a donkey-cart along the half so left open, proceeding in the same direction as the engine, and overtaking it, was jerked from his seat by the wheel of his cart colliding with a large stone lying in the water-table close to the grass margin on the side of the road opposite to the engine ; the jerk threw the man into the road and under the wheels of the engine, where he received injuries from which he died ; the stone (which had probably fallen off the fence bounding the road) had, to the knowledge of the Council's workmen, been in that position for two or three days previous to the accident. In an action under Lord Campbell's Act, the jury found that the defendants were negligent in omitting to remove the stone, and that there was no conÂtributory negligence on the part of the plaintiff. Held (per Palles, C.B., and Wright, J., Kenny, J., disc.), that the act of interfering with the road imposed an obligation on the County Council to take care that the remaining portion left open for public use was reasonably fit and safe for such purpose, and that the Council were therefore liable in damages. NEW TRIAL MOTION. The County Council of County Tipperary, North Riding, were engaged repairing a road within their county, which it was their duty to maintain and keep in proper repair. In performance of such duty they employed a steam-roller to crush down and level in the new metal placed on the road, the work being carried out by using the engine on a stretch half the width of the road, and (1) Before PALLES, C.B., KENNY and WEIGHT, JJ. VOL. II.] KING'S BENCH DIVISION. 393 leaving the other half open for traffic ; a notice was placed at K. B. Dir. either end of the stretch warning the public to " Beware of the 1912. RYAN steam-roller." While engaged in this work a man named v. John Ryan, driving in a donkey-cart, came along the stretch in TIPPERARY the space left for traffic, proceeding in the same direction as the(. R.) Co. Couricu.. engine ; when just past the engine the opposite wheel of the donkey-cart struck against a large stone lying in the water-table close to the grass margin of the road ; this stone had, to the knowledge of the defendants' workmen, been lying there for two or three days previous. The impact with the stone tilted up the cart, and threw the driver out in front of the moving engine, where he was run over and killed. The father of the deceased man brought an action under Lord Campbell's Act to recover damages occasioned to him as father of John Ryan, deceased, by the negligence and breach of duty of the defendants, their agents or servants, which occasioned the death of the said John Ryan. The statement of claim was in the following terms :— " 1. The plaintiff is a farmer residing at Gurthnadelawn, Nenagh, in the county of Tipperary, and he brings this action for the benefit of himself as sole parent of the said John Ryan, deceased. " 2. The plaintiff has suffered damage from the negligence and breach of duty of the defendants, their agents or servants, under the circumstances hereinafter-mentioned. "3. The defendants are the County Council of the North Riding of the County of Tipperary, and as such liable for the maintenance and repair of the roads (including the road hereinafter mentioned) in their said county. " 4. On the 25th day of January, 1911, the defendants, in performance of their duty, and in discharge of their liability as aforesaid, were by their servants or agents repairing the public highway at Ardcroney, being one of the roads in said county, and for the purpose of such repairs then used a steam-roller. " 5. On the said day the said John Ryan was lawfully driving a donkey-cart along the said road, when by reason of the negligence of the defendants, their agents or servants, in placing and allowing to remain a large stone on the said road, the said John Ryan was 394 THE IRISH REPORTS. [1912. The particulars attached to the statement of claim set out that v. TIPPERARY the plaintiff, Darius Ryan, was the sole surviving parent of the (N. R.) deceased, John Ryan, who was a bachelor earning about 25s. a Co. CouNcIL. week, and was the sole support of the plaintiff. The defendants delivered the following defence : " 1. The defendants deny that they, or their agents or servants, or any of them, were or was guilty of the alleged or any negligence or breach of duty. " 2. The defendants do not admit that there was a large stone on the said road, or that the said John Ryan, deceased, was thrown from his cart, or fell under the defendants' steam-roller, or was killed by reason or in consequence of any of the acts or matters complained of. The said John Ryan, deceased, was thrown from his cart, and fell under the said steam-roller and was killed by inevitable accident. " 3. There was contributory negligence on the part of the said John Ryan, deceased. " 4. Admitting for the purpose of the defence pleaded in this paragraph, but not further or otherwise, that the plaintiff is a person by or for whose benefit this action can be brought, the defendants say that the plaintiff was neither wholly nor partially dependent upon the earnings of the said John Ryan, deceased, and has not suffered any pecuniary loss or damage from the death of the said John Ryan, deceased. " 5. The defendants do not admit that the earnings of the said John Ryan, deceased, were of the amount alleged in the particulars." The plaintiff, in his reply, joined issue, and pleaded further that if there was any contributory negligence on the part of the deceased (which he denied) the defendants could, nevertheless, by the exercise of ordinary care, have avoided causing the injuries complained of. At the trial the plaintiff's statement of claim was amended by adding as follows : " The defendants are the Highway Authority for the North Riding of the County of Tipperary, and on the 25th day of January,. VoL. II.] KING'S BENCH DIVISION. 395 1911, and for some days prior thereto were steam-rolling and K. B. Div. otherwise repairing the highway at Ardcroney, within said Riding 1912. RYAN R and County. On the 29th day of January, 1911, and for at least L. some days prior thereto, a large stone was and remained on that TIPPERARY portion of the said highway, which was then under repair by the(o' It') ,o. ,OUNCIL. defendants, and was an obstruction to the said highway, and might be a source of danger to persons lawfully using the said highway, and the defendants knew, or with reasonable care ought to have known, that the said stone was upon the said highway, and was or might be a source of danger to persons lawfully using the same. The defendants, notwithstanding, did not remove the said stone, nor did they take any precautions in reference thereto, but, on the contrary, in the course of such steam-rolling and repairing as aforesaid, they narrowed the said highway so as to compel vehicles using the same to keep to the side of the said highway, whereon the said stone was and remained, by reason whereof the portion of the said highway available for such vehicles became and was unsafe and dangerous for such vehicles, and by reason of the premises the said John Ryan, while lawfully using the said highway, was thrown from his cart and killed." The action was tried before Dodd, J., and a common jury of the City of Dublin, on the 31st of January, and 1st day of February, 1912, when the following questions were...

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