Gaffney v Dublin United Tramways Company

• Jurisdiction: Ireland
• Judgment Date: 08 February 1916
• Date: 08 February 1916
• Court: King's Bench Division (Ireland)

Gaffney

and

The Dublin United Tramways Co., Ltd.

K. B. Div.

Appeal.

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.

1916.

Accident — Personal Injuries — Negligence — Contributory Negligence — Direct Cause of Accident — Possibility of Defendant's avoiding the Accident by Exercise of reasonable Care — Accident due to Result of joint Negligence of Plaintiff and Defendant.

The plaintiff, a partially deaf man, in crossing a thoroughfare was knocked down and injured by a tram-car. The driver, previous to the accident, sounded the gong and shouted, but did not slacken speed. The jury found that the plaintiff was negligent in not keeping a proper look-out, but that the driver by reasonable care could have avoided the consequences of the plaintiff's negligence. They also found that the accident was not directly caused exclusively by the negligence of the plaintiff, or exclusively by the negligence of the driver, but was directly caused by the negligence of both concurrently; and they assessed a sum for damages.

Held by the Court of Appeal (reversing the decision of the King's Bench Division), that on the åndings of the jury the plaintiff was entitled to judgment for the damages assessed.

Motion for judgment or a new trial.

The action was brought by the plaintiff to recover damage for personal injuries caused by the alleged negligence of the defendants' servants. The defence included a plea of contributory negligence. The action was tried before Kenny J. and a special jury of the City of Dublin on the 6th June, 1916. The following summary of the material evidence is taken from the judge's report:—

The plaintiff, a partially deaf man, was, between 9 and 10 o'clock on the night of 3rd January, 1914, knocked down and injured in Sackville Street, Dublin, near to the Parnell Monument, by a tram-car coming from Nelson's Pillar. The plaintiff, a man of seventy years of age, swore that he never saw the tram-car at all before being knocked insensible, Hayden, a hackney cardriver, stated that he saw the plaintiff crossing the street. He reached the first rail, and kept walking across the road, head downwards. The car was coming from Nelson's Pillar at about six miles an hour. The driver shouted “hey, hey, hey!” several times, but no gong was sounded. The driver did not slacken speed until the plaintiff was on the ground. The left side of the front portion of the car struck the plaintiff above the hip. On cross-examination the witness stated that the car was about two lengths distance from the plaintiff when the driver began shouting. Byrne, the driver of the tram-car, stated that he drove the car slowly up Sackville Street, and was about three yards from the spot where the plaintiff was struck when he first saw him. He had sounded the gong before seeing the plaintiff, and continued to sound it, and also shouted at the plaintiff, who immediately struck against the car. When he saw the plaintiff first he had his head down, and paid no attention. He pulled up when the plaintiff was struck. Boden, an eye-witness, stated that he saw the plaintiff step off the footpath, and walk right in front of the tram; and that the driver could not have avoided the accident.

The following questions were submitted to the jury, the answers to which are annexed:—

“1. Was the driver of the tram-car negligent—(a) as to rate of speed? Answer, ‘No’ or (b) as to not keeping a proper look-out? Answer,‘No.’ (c) Not sounding the gong? Answer, ‘No’; or (d) not slackening speed? Answer, ‘Yes.’

2. Was the plaintiff negligent when approaching the tram-car, and, if so, was it not in keeping a proper look-out? Answer, ‘Yes.’

3. If the plaintiff was negligent, could the tramway driver, by reasonable care, have avoided the consequences of such negligence? Answer,‘Yes.’

4. Was the accident directly caused (a) exclusively by the plaintiff's negligence? Answer, ‘No’; or (b) exclusively by the negligence of the tram driver? Answer, ‘No’; or (c) by the negligence of both concurrently? Answer, ‘Yes.’

5. If you find for the plaintiff, assess damages. Answer, £20.”

Upon these findings the jury, by the direction of the judge, found for the defendants, and judgment was entered for the defendants with costs.

The judge reported that had he been trying the case without a jury, he would, without hesitation, have found that there was no negligence of any sort on the part of the driver of the car, and that the occurrence was caused wholly by the plaintiff's negligence.

The plaintiff applied to the King's Bench Division that the judgment in the action should be entered for him, or in the alternative, for a new trial.

C. S. Campbell, for the plaintiff.

Serjeant Sullivan K.C., Gordon K.C., and Collins, for the defendants.

Palles C.B.:—

If the case had come before us without any application to set aside the findings upon the third question, the Court would have been in a great deal of difficulty, because in that event the verdict would have been inconsistent with itself. It would have been found in answer to the third question that the defendants could, by the exercise of reasonable care, have avoided the consequences of the plaintiff's contributory negligence, and then, as against that there would be the answer to the fourth question (c) that the accident was directly caused by the negligence of both concurrently. These two findings would have been diametrically opposed, and, therefore, to keep the record right we allowed the defendants to apply to set aside the answer of the jury to the third question.

In my opinion the settled law in reference to contributory negligence is this: if an injury is the direct result of two acts, the negligence of the defendants, and the negligence of the plaintiff, the latter cannot recover. A number of adjectives have been used in describing the connexion between the negligence and the injuries; but there is no word which more closely identifies the injuries with the negligence than the word “direct,” and I look upon it as settled law that the plaintiff cannot recover in this Court if the injuries are the joint result of these two acts, in the present case it has been found that the accident was directly caused by the defendant's negligence and the plaintiff's negligence, both concurrently, and irrespective of any of the cases cited, and without placing the slightest reliance upon Reynolds v. Tilling (1),

my view is that, upon the settled law, if the answer to the third question is set aside, the plaintiff cannot recover.

What are we to do with this third question? It appears to me that upon the entire questions submitted by Mr. Justice Kenny to the jury, they find that the injury to the plaintiff was the direct result of those two concurrent acts, and I prefer that finding to the rather metaphysical answer given to the third question, because I do not see—those two negligent acts being concurrent, and the direct cause of the accident—where there is room for any intervening cause, and therefore I am of opinion that the answer to the third question ought to be set aside, and that the judgment for the defendants should stand.

Madden and Boyd JJ. concurred.

C. L.

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

C. S. Campbell, for the plaintiff, contended that, having regard to the answer of the jury to the third question, the plaintiff was entitled to judgment. In the alternative, he claimed a new trial of the action.

The Attorney-General (GordonK.C.) and Serjeant SullivanK.C. (Collins with them) for the defendants, contended that they were entitled to judgment on the findings. The cases cited are mentioned in the judgments.

Cur. adv. vult.

Sir Ignatius J. O'Brien L.C.:—

This case comes before the Court on an appeal from an order of the King's Bench Division entering judgment in the action for the defendants, the Dublin United Tramways Company. It was argued before this Court twice. The necessity for the second argument arose from the lamented death of Moriarty L.J., before judgment had been delivered; and accordingly Lord Justice Ronan and I have had the advantage of hearing the case re-argued. It would be only common justice to say that on the occasion of each argument the case was presented by Mr. Campbell, the counsel for the appellant, with great erudition and clearness, and in a manner which showed his entire appreciation of the difficult law relating to this question of negligence. As to the learned Attorney-General and Serjeant Sullivan, the counsel for the respondents, their position at the Bar renders it unnecessary to say anything more than that, as one would expect, they on their side have assisted the Court as far as it was possible for counsel to do.

With regard to the general principles of law involved in the present case, although there was much discussion, I did not understand that counsel on either side argued that the present case involved any new departure, as I conceive it does not. The difficulty which the case presented to my mind was whether the findings of the jury were not, having regard to the questions, so inconsistent that a new trial should be directed; but speaking with the greatest respect of the judgment of the Lord Chief Baron, I have not been able at all to agree with the view that defendants were entitled to have a verdict entered for them; and I conceive that the trouble which arises in the present case has its origin in attributing to the word “directly” a fixed and peculiar technical meaning which I do not think it has at the present state of development of the law relating to negligence.

This particular case is one of a class popularly spoken of as “running-down cases,” where a man attempting to cross the street in one of the principal Dublin thoroughfares was struck by a tramcar and injured.

There is a sentence in a judgment of Holmes L.J., when sitting in...