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

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 17 May 1912
• Court: King's Bench Division (Ireland)
• Docket Number: (1911. No. 4958.)
• Date: 17 May 1912

Darius Ryan

and

The County Council of The County Tipperary, North Riding.

K. B. Div.

(1911. No. 4958.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1912.

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.

Held (per Palles, C.B., and Wright, J., Kenny, J., diss.), 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

leaving the other half open for traffic; a notice was placed at either end of the stretch warning the public to “Beware of the steam-roller.” While engaged in this work a man named John Ryan, driving in a donkey-cart, came along the stretch in the space left for traffic, proceeding in the same direction as the 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 thrown from his cart, and fell under the said steam-roller, which passed over and killed him.”

The particulars attached to the statement of claim set out that the plaintiff, Darius Ryan, was the sole surviving parent of the deceased, John Ryan, who was a bachelor earning about 25s. a 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, 1911, and for some days prior thereto were steam-rolling and otherwise repairing the highway at Ardcroney, within said Riding and County. On the 29th day of January, 1911, and for at least some days prior thereto, a large stone was and remained on that portion of the said highway, which was then under repair by the 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 submitted to and answered by the jury.

1. Was the roadway at the time of the injury in fact dangerous to persons with vehicles using the roadway? Answer— “Yes.”

2. Were the defendants negligent—(a) In placing the stone on the roadway? Answer— “No”; (b) In omitting to remove it from the roadway? Answer— “Yes”; (c) In not taking proper precautions while they were repairing the road to prevent injury to persons (with vehicles) who might be proceeding upon the roadway? Answer— “Yes”; (d) If you answer yes, what precautions did they omit? Answer— “In not removing the stone.”

3. Did the deceased, by his own want of ordinary care and caution, so directly contribute to the happening of the occurrence that but for such want of ordinary care and caution the occurrence would not have happened? Answer— “No.”

4. Damages? Answer— “£90.”

The Judge gave judgment for the plaintiff for £90 and costs.

The defendants now moved for an order that the verdict entered for the plaintiff be set aside, and in lieu thereof judgment be entered for the defendants, or in the alternative for a new trial, upon the following grounds—(a) That there was no evidence proper to be submitted to the jury that the defendants were guilty of any act of misfeasance or actionable negligence, and that the learned Judge should have directed the jury accordingly.

(b) That the learned Judge misdirected the jury in directing them that they would be at liberty to find upon the evidence that, the width of the roadway available for vehicular traffic having been reduced by the defendants' operations in connexion with the repair of the said roadway, it was the duty of the defendants to have removed the stone in question from the said roadway, if the removal thereof was in the opinion of the jury a proper precaution for preventing injury to persons (with vehicles) who might be proceeding upon the said roadway.

(c) That the findings of the jury that the defendants were negligent in omitting to remove the said stone from the said roadway, and in not taking proper precautions (by removing the said stone) while they were repairing the said roadway, were respectively against the evidence and the weight of the evidence.

(d) That the finding of the jury that the deceased in the pleadings mentioned did not by his own want of ordinary care and caution so directly contribute to the happening of the occurrence, that but for such want of ordinary care and caution the occurrence would not have happened, was against the evidence and the weight of the evidence.

The following is a copy of the Judge's notes of the trial of the action:—

“Action of negligence causing death of plaintiff's son.

“1st Witness, Patrick Ryan—‘Brother of deceased. Deceased was thirty-one years old. He was a carpenter. I taught him. He worked at home. I worked out. I made model. Model made to scale. I was shown by John Hogan positions. These are marked—Roller, 6 feet 9 inches; donkey-cart, 4 feet 5 inches, board across. Width of road, 18 feet 3 inches from selvage to selvage. Selvage right side, 21 inches wide, 9 inches high. Sloping selvage left hand side, 10...