Dublin, Wicklow, and Wexford Railway Company v Slattery

• Jurisdiction: Ireland
• Judgment Date: 31 July 1878
• Date: 31 July 1878
• Court: House of Lords (Ireland)

[HOUSE OF LORDS.] THE DIRECTORS, &C., OF THE DUBLIN, WICKLOW, AND WEXFORD RAILWAY COMPANY APPELLANTS (DEFENDANTS BELOW); AND JUDITH SLATTERY RESPONDENT (PLAINTIFF BELOW). 1878 Feb. 5, 7, 8, 11, 12, 14; May 28, 31; June 3; July 31. THE LORD CHANCELLOR (Lord Cairns), LORD HATHERLEY, LORD PENZANCE, LORD O'HAGAN, LORD SELBORNE, LORD COLERIDGE, LORD BLACKBURN, and LORD GORDON.

Railway - Injury - Evidence - Question for Jury.

Where there is conflicting evidence on a question of fact, whatever may be the opinion of the Judge who tries the cause as to the value of that evidence, he must leave the consideration of it for the decision of the jury.

S. went to the Dublin and Kingstown railway station to accompany a relative who was going by the up train to Dublin. It was necessary to cross the line in order to get the ticket. S. went through a gate, down a pathway, and across the line in front of the train going to Dublin, which was then slowly approaching the station from Kingstown. The time was night. There were notice boards warning persons not to cross the line at that point, but there was evidence that the railway servants never interrupted any persons who did cross the line there. S. crossed in safety — he obtained a ticket for his relative, who, with two friends, was standing on the bank by the side of the up line. The train to Dublin had, in the meantime, arrived, and was standing still. S. having got the ticket began to recross the line, being then, not in front of the Dublin train, but behind it, in consequence of which that train prevented him seeing anything on the down line from Dublin; and he moved on. As he was going on the down line (which ran from Dublin to Kingstown), the down express train caught him and he was killed. It was a rule of the railway that the express train should always sound a whistle on approaching the station, and the driver of that train swore that he had whistled twice, and some other servants of the railway company swore that they had heard the whistling. The friends of S. had, in their evidence for the Plaintiff, sworn that they were in a situation to hear the whistle if it had been sounded, and that they had not heard it: and one of them who could see the down train approaching, swore that he heard the “rumbling” of the approaching train, but heard no whistle:—

Held, that this was a case which was properly left to the jury, for that where there was contradictory evidence on facts, the jurors and not the Judge must decide upon them:—

Diss. Lords HATHERLEY, COLERIDGE, and BLACKBURN, who thought that when there was not, in the first instance, uncontradicted evidence to establish the right of a Plaintiff to a verdict, the Judge might direct a nonsuit or a verdict for the Defendant, and that there was here enough to shew, even on the undisputed facts, that the mischief had been the result of S.'s own negligence, and that a nonsuit or a verdict for the Defendants ought to have been directed.

Where notices have been put up by a railway company forbidding persons to cross the line at a particular point, but these notices have been continually disregarded by the public, and the company's servants have not interfered to enforce their observance, the company cannot, in the case of an injury occurring to any one crossing the line at that point, set up the existence of the notices by way of answer to an action for damages for such injury.

Under the circumstances of the case the appeal was dismissed without costs.

The following cases were cited and commented on:—

Stubley v. London and North Western Railway Company^F2;

Cliff v. Midland Railway Company^F3;

Ellis v. Great Western Railway Company^F4;

Crafter v. Metropolitan Railway Company^F5;

Bilbee v. London and Brighton Railway Company^F6;

Wright v. North Western Railway Company^F7;

Wilkinson v. Fairrie^F8;

Sullivan v. Walker^F9;

Tooney v. London and Brighton Railway Company^F10;

Indermaur v. Dames^F11;

Cotton v. Wood^F12;

Lewis v. London, Chatham, and Dover Railway Company^F13;

Skelton v. London and North Western Railway Company^F14;

Falkener v. Great Southern and Western of Ireland Railway Company^F15;

Adams v. Lancashire and Yorkshire Railway Company^F16;

Ryder v. Wombwell^F17;

Wyatt v. Great Western Railway Company^F18;

Radley v. London and North Western Railway Company^F19;

Bridge v. Grand Junction Railway Company^F20;

James v. Great Western Railway Company^F21;

Siner v. Great Western Railway Company^F22;

Metropolitan Railway Company v. Jackson^F23;

Stapley v. London and Brighton Railway Company^F24;

Cockle v. South Eastern Railway Company^F25;

North Eastern Railway Company v. Wanless^F26;

Holmes v. North Eastern Railway Company^F27;

Gee v. Metropolitan Railway Company^F28;

Nicholson, v. Lancashire and Yorkshire Railway Company^F29;

Bridges v. North London Railway Company^F30.

THIS was an appeal against a decision of the Court of Exchequer Chamber in Ireland, by which a previous decision of the Court of Common Pleas there stood affirmed^F1. The action was brought by Judith Slattery, the widow of John Slattery, deceased, on behalf of herself and children, to recover damages from the Defendants in respect of the death of her late husband, which, in her plaint, she alleged to have been occasioned by the negligence of the Defendants.

The first count alleged negligence on the part of the Defendants expressly describing as negligence the leaving a gate unfastened without any person to watch or attend the same, in not providing a safe mode of crossing the line opposite the gate, in negligently omitting to light the station, and to whistle before, or signal the arrival of, the express train. The second count alleged negligence on the part of the Defendants in omitting to take proper care of, or proper precaution in relation to the crossing, so as to permit persons lawfully using the same to cross with safety. The third count alleged negligence in the management and driving of the express train.

The Defendants pleaded as to the different counts, first denying the alleged negligence; second, a plea of contributory negligence; and thirdly, they denied that the deceased was lawfully crossing the line.

The issues, settled in the usual way, were first, whether there was any such negligence on the part of the Defendants as alleged; secondly, whether the defence of contributory negligence was not true in substance and in fact; and thirdly, whether the deceased was lawfully crossing the line.

The cause had been twice tried. In the first instance it was tried at the Wicklow Summer Assizes, 1873, before Mr. Baron Fitzgerald and a special jury, when a verdict was given for the Plaintiff. A new trial was granted on the ground of the improper reception of some evidence, and the case came on again for trial at the Wicklow Spring Assizes, 1874, before Lord Chief Baron Palles, and a special jury, when a verdict was again given for the Plaintiff, and the damages assessed at £1205. The following is a summary of the facts as stated by Mr. Justice Morris, in moving the judgment of the Court of Common Pleas:—

On the 9th of May, 1873, the deceased accompanied a cousin of his, John James Slattery, to the Lansdowne Road Station to see him off by the last train which leaves Kingstown at 11.30 P.M. for Dublin. Two friends named Farrelly and Darcy were with them. They reached Lansdowne Road Station about eight or nine minutes before twelve. The deceased crossed the road by the Horse Shoe Gate from the Serpentine Avenue, just before the up train to Dublin reached the Lansdowne Road Station. The deceased was the first of the four, and passed the gate and crossed the line to the ticket station on the opposite side, just before the train came up — that train coming up slowly and being about forty yards distant. The deceased got the ticket, and began to return to his friends, and was crossing the line again, being then behind the carriages of the train, and therefore incapable of seeing either of the lines in the direction of Dublin. The Dublin train was then stationary. He passed in the rear of that train, and went on the down line, and an express train coming down that line caught him and killed him. Darcy, who was on the opposite side, and whose view was not obstructed by the stationary up-train, saw the express train coming, but had no means whatsoever of conveying a warning to the deceased. It appeared that there were notices not to cross the lines at the Horse Shoe Gate, but that persons, whether going or not going as passengers on the line, frequently did cross at the Horse Shoe Gate, and were not prevented from doing so by the Defendants' servants, and that the same was the case with persons residing at the Serpentine Avenue, who arriving from Kingstown got out of the carriages, went to the rear of the train and crossed by that level crossing where Slattery was killed.

The Plaintiff's witnesses, on cross-examination, denied that they had heard any whistling from the express train, Mr. Darcy stating that though he saw and noticed the approach of that train, and heard its rumbling, he had not heard any whistling from it.

At the close of the Plaintiff's case, the counsel for the Defendants submitted that there was no evidence of negligence on the part of the Defendants to be left to the jury, that even on the Plaintiff's evidence there was contributory negligence shewn, and that the deceased was a trespasser, and therefore that the learned Lord Chief Baron ought to nonsuit the Plaintiff. His Lordship declined to do so, and the Defendants then set up, in answer to the action, that there were notices which forbad the crossing the line at that point, and that it was a rule for the driver of the express train to whistle on approaching the station, that he whistled on that occasion in the usual manner more than once, and that the express train had lights in front, so that if the deceased had taken any ordinary precautions when about to cross the line he must have heard the whistle and...