Gallagher v Electricity Supply Board

JurisdictionIreland
Judgment Date12 July 1933
Date12 July 1933
CourtSupreme Court (Irish Free State)

Supreme Court.

Gallagher v. Electricity Supply Board.
MARY GALLAGHER
Plaintiff
and
ELECTRICITY SUPPLY BOARD, Defendants (1)

Negligence - Fatal accident - Contributory negligence - Collision with stationary motor van at night - Motor van stationary on right-hand side of road - Head-lights left lighting - Whether evidence of negligence - Measure of damages - Proof of pecuniary loss - Fatal Accidents Act, 1846 (9 & 10Vict. c. 93), sect. 2.

Application to the Supreme Court, on behalf of the defendants, by way of appeal from the verdict and judgment for the plaintiff entered on 14th November, 1932, on the trial of the action before Sullivan P. and a jury, for an order that the said verdict and judgment be set aside and discharged and that in lieu thereof judgment be entered for the defendants, or, in the alternative, that a new trial of the action be ordered. The grounds of the appeal, set out in the application, were:—1, That the trial Judge should, on the application of counsel for the defendants, have withdrawn the case from the jury and entered judgment for the defendants at the close of the plaintiff's case upon the ground that there was no evidence of negligence on the part of the defendants causing or contributing to the accident; 2, that there was no evidence upon which the jury could reasonably answer question No. 1 in the affirmative; 3, that the finding of the jury in answer to question No. 1 was perverse and against evidence and the weight of evidence; 4, that the trial Judge should have directed the jury that if the deceased man was dazzled or unable to place the position of the van on the road it was negligence on his part to approach so close to the van that he was unable to avoid colliding with it; 5, that the finding of the jury in answer to question No. 2 was perverse and against evidence and the weight of evidence; and 6, that the damages were excessive.

The facts of the case have been summarised in the headnote and appear sufficiently from the judgment of Kennedy C.J.

The plaintiff brought an action under the Fatal Accidents Act, 1846, as widow of, and dependent on, her late husband, on behalf of herself and of her five children, all alleged to have been dependent on him and to have suffered damage through the negligence of the defendants and their servants in the care and management of a motor van, by reason whereof the deceased sustained fatal injuries and died.

From the evidence at the trial it appeared that the deceased was driving with his daughter, aged 24 years, in a pony trap along a country road in the evening. The portion of the road was straight for about 500 feet. The daughter's evidence was that she saw the head-lights of a van in the distance. They were glaring lights. She could not judge how fur away they were. Her father was driving on the left side of the road. When she got near the lights she saw the van was on its wrong side of the road. She knew it was stopped first and it was after that—about six or seven yards away—she realised it was on its wrong side. Her father pulled to the right when he was about six or seven yards from it. He drove on and then there was a bang and she did not remember anything more until she was picked up. The lights of the van were strong. Her father had the ordinary car lamp on the right side of the trap. In cross-examination, she said that she did not know until 18 or 20 yards away that the lights were stationary. Her father did not attempt to slow down at any time. The pony was under control and could have been pulled up in 2 or 3 yards. The driver of the motor van, which was a 15 cwt. Ford van, stated that he was visiting a transformer station in the course of his duty as an employee of the defendants. He left the van on its right-hand side, 2 or 3 feet from the edge of the road. He expected to be in the station some minutes. All the lights were on, two wing lights and two head-lights. He was leaving the station when he heard shouts on the road. There was no other traffic or obstruction on the road.

The evidence as to damage was that the deceased had been a substantial farmer holding 150 acres of freehold registered land, which he worked as a mixed farm. He was 54 years of age and was helped by some of his children, sometimes consulting a brother as to the value of cattle. The lands were subject to a charge of about £900 in favour of a bank. No representation was raised to him and it did not appear whether he had made a will or not. The widow was 67 years old and hud been paralysed for many years. There were five children, all unmarried, four of whom lived at home. Two sons, aged respectively 28 years and 25 years, helped on the farm. Two daughters, aged respectively 26 years and 24 years, worked in the house. Another daughter, aged 19 years, was a novice in a convent.

The jury found:—1, That the driver of the motor van was negligent; 2, that the deceased was not negligent; and they assessed damages at £1,200 which they allocated between the widow and the children. Judgment was entered for the amounts so assessed and allocated. Upon appeal,

Held by the Supreme Court (FitzGibbon and Murnaghan JJ.; Kennedy C.J. dissenting) that there was no evidence to support the first finding, and judgment should be entered for the defendants.

Held further (Kennedy C.J. and FitzGibbon J.; Murnaghan J. expressing no opinion on the point), that there was no evidence of any pecuniary loss under the Fatal Accidents Act, 1846.

Measure of damages in fatal accident cases considered by Kennedy C.J.

Cur. adv. vult.

Kennedy C.J. :—

This action was brought under the Fatal Accidents Act, 1846, by the plaintiff as widow of, and dependent on, her late husband, John J. Gallagher, on behalf of herself and of his five lawful children, all alleged to have been dependent on him and to have suffered damage through the negligence of the defendants and their servants in the care and management of a motor van, by reason whereof John J. Gallagher sustained fatal injuries at Bellefield, Enniscorthy, in the County of Wexford, on the 26th of March, 1932, and died on the 1st of July following. The action was tried by the President of the High Court with a jury when a verdict for £1,200 (allocated amongst the plaintiff and her children) was found against the defendant Board and judgment for that sum was given for the plaintiff. The Board has taken the present appeal praying for judgment, or, alternatively, for a new trial of the action.

The facts of the disaster are simple and up to the crucial point can hardly be said to be in serious controversy.

The deceased man, John J. Gallagher, was a farmer aged about fifty-four years. He had a substantial farm at a place called Verona, at Enniscorthy, in the County Wexford, where he lived with his wife and children and with their assistance worked his land.

On the 26th March, 1932, he went into Enniscorthy accompanied by his daughter, Cecilia, a girl of twenty-four years of age. They travelled in a pony trap, of the type called an "inside trap," with a pony which they had had for twelve or thirteen years. They left Enniscorthy about 9 o'clock p.m. for home. The father drove, as he always did, sitting on the left hand-side of the trap, the daughter seated on the right-hand side. They were on a road which ran straight for about five hundred feet with a width, excluding the foot-path, of some twenty-four feet. The girl's description of what happened (as set out in the trial Judge's report) is as follows:—

"I saw the head-lights of a van in the distance. I saw them when I left Duffy Street. They were glaring lights. I could not judge how far away they were. We still drove on. I said something to my father. He drove on. He was driving on the left side of the road. We were facing the lights. When I got up near the lights I then saw the van was on its wrong side of the road and the lights were glaring. I knew it was stopped when I got near it. I knew it was stopped first and it was after that I knew that it was on the wrong side of the road. I was fairly near it when I realised it was on its wrong side of the road—that is about six or seven yards away. My father pulled to the right when he was about six or seven yards from it. He drove on and then there was a bang and I don't remember any more until I was picked up. The lights were strong. Father was taken back to Enniscorthy. We had a light on the right side of the trap, the ordinary car lamp."

In cross-examination she said:—

"I did not know until eighteen or twenty yards (sic, but this must be a slip for "feet," as in every other reference to this distance, she said "six or seven yards") away that the lights were stationary. I thought they were moving with the glaring lights and we were moving towards them. . . . I was up on the lights when I found they were on the wrong side of the road. My father had made no attempt to change his direction before that. He did not attempt to slow down at any time. . . . The pony was under control and could have been pulled up in a comparatively short distance— two or three yards. I could not see which side the car was on."

The vehicle carrying the lights into which the pony trap crashed was a 15 cwt. Ford van, practically new, the property of the Electricity Supply Board and driven by an employee of the Board. The van was stationary on the road outside a transformer station which the driver was visiting in the course of his duty. It was standing on its right-hand side, with its head pointing in the direction from which the deceased man Gallagher was coming in his pony trap. The distance from Duffy Street mentioned by Cecilia Gallagher to the transformer station is five hundred feet. The driver of the van stated in his evidence:—

"As far as I remember my van was two or three feet from the edge of the road. I expected to be in the station some minutes. All the lights were on the van, two wing lights and two head-lights...

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