Knox v Great Northern Railway Company

• Jurisdiction: Ireland
• Judgment Date: 05 May 1895
• Docket Number: (1894. No. 463.)
• Date: 05 May 1895
• Court: Court of Appeal (Ireland)

Knox

and

Great Northern Railway Co. (1).

Q. B. Div.

Appeal.

(1894. No. 463.)

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1896.

Railway — Carriage of goods — Horse — Alternative rates — Condition relieving from liability — Contract made after injury.

The plaintiff's horse was taken by his groom to Armagh railway station, to be sent to Dublin. A porter in the employment of the defendants tried to put the horse into a box, but failed in the attempt, and the horse slipped and received serious injuries. At the trial of the action the jury found that these injuries were caused by the negligence of the defendants, but not however amounting to wilful misconduct. The attempt to box the horse was afterwards successfully carried out. The groom then, after the injuries were done, signed a contract in writing for the carriage of the horse at the defendants' reduced rate, subject to conditions, one of which was:—“That at the reduced rate the Company carry at owner's risk, and exempt from all liability not occasioned by the wilful misconduct of their servants, acting within the scope of their authority.” There was an alternative higher rate, under which the Company undertook the ordinary liabilities of carriers:—

Held, by the Queen's Bench Division, and by the Court of Appeal (Barry, L.J., diss.), that the defendants were not liable.

New Trial Motion.

The action, which was tried before Mr. Justice O'Brien and a special jury on the 19th and 20th April, 1894, was brought to recover damages, laid at £38, for injuries to the plaintiff's horse caused by defendants' servants negligently and improperly placing the horse in a horse-box at defendants' station at Armagh, and in negligently handling and managing said horse at said station.

The defendants in their defence traversed the plaintiff's averments, and pleaded that the said horse was received by the defendants under a contract signed by the plaintiff, a condition of which was that in case of animals for which a contract note with two rates of carriage should be offered to the customer, the defendants would give him the alternative of carrying at

either rate — at the full rate, which would be charged when the contrary was not expressed, the Company undertaking the duties of carriers subject to the conditions in the said contract note and their statutory rights; at the reduced rate, receiving and carrying at the owner's risk, exempt from all liability not occasioned by the wilful misconduct of their servants acting within the scope of their authority; that the plaintiff elected to have his horse carried at the lower rate, and that the injuries complained of were not occasioned by the wilful misconduct of the defendants' servants acting as aforesaid (1). The defendants further pleaded that the injuries complained of were solely caused by the restiveness of plaintiff's horse, for which the defendants, under the conditions of the contract, were not liable.

The facts proved in evidence at the trial, so far as here material, were to the following effect: — On the 11th December, 1893, the plaintiff's groom, Charles Creighton, took the horse to Armagh Station to be boxed and sent to Dublin by the 10.35 train. The horse, while being boxed at the station, slipped his leg down between the platform and the horse-box, and sustained a serious injury. After the accident the horse was put into the box, and Creighton then went to the ticket office and purchased a ticket at the lower of the alternative rates of carriage offered by the Company. Creighton was aware that there were two rates of carriage. Creighton stated that the reason he sent the horse on, notwithstanding the accident, was that the horse was being consigned to a veterinary surgeon. He also stated that when purchasing the ticket he told the booking clerk that the horse had met with an accident. The booking clerk denied having heard this statement. It was the ordinary custom for persons booking horses to take the ticket after the horses were boxed. At the close of the plaintiff's case, Campbell, Q.C., applied for a direction on the ground of the special contract, referring to Hodgman v. West Midland Railway Co. (1), and contending that the subsequent contract

related back and covered the whole transaction, and on the ground that there was no evidence of wilful misconduct; and, at the close of the evidence, he again applied for a direction (1) on the ground that there was no evidence of negligence on the part of the Company, and (2) on the ground that the contract excluded liability for anything but wilful misconduct.

The learned Judge refused to direct, save as to wilful misconduct, of which, in his opinion, there was no evidence. He withdrew the special contract alleged to exempt the Company from liability altogether from the consideration of the jury. The jury found for the plaintiff with £25 damages. Judgment was entered accordingly.

This verdict may be taken as sufficiently giving the general effect of the evidence at the trial — namely, that the accident was caused by the negligence, not amounting to wilful misconduct, of the defendants' servants, and was not caused by the vice or restiveness of the horse.

Counsel for the defendant Company now moved that the verdict and judgment had for the plaintiff should be set sside, and the verdict and judgment entered for the defendants on the ground that the learned Judge should have so directed, as the horse was received and carried at the owner's risk, and as there was no evidence of negligence by the defendants or their servants, and on the ground that the verdict was against evidence and the weight of evidence, or for a new trial.

Campbell, Q.C., Meredith, Q.C., and R. F. Harrison, for the defendants.

O'Shaughnessy, Q.C., and Bates, for the plaintiff.

The arguments appear sufficiently from the judgments.

Cur. adv. vult.

Campbell, Q.C., Meredith, Q.C., and R. F. Harrison, for the defendants.

O'Shaughnessy, Q.C., and Bates, for the plaintiff.

Johnson, J.:—

This is a motion on the part of the defendants to set aside the verdict and judgment had for the plaintiff at the trial before Mr. Justice O'Brien, and to enter the verdict and judgment for the defendants on the ground that the learned Judge should have so directed, as the horse in the pleadings mentioned was received and carried by the defendants at owner's risk. The action was for damages for injuries to the plaintiff's horse by the defendants' servants negligently and improperly placing the horse in a horsebox at defendants' station at Armagh, and negligently handling and managing the horse at that station. The defendants traversed the alleged negligence, and pleaded a special defence that they received the horse under a contract signed by the plaintiff, a condition of which offered an alternative rate of full or reduced carriage to customers: at the full rate undertaking the ordinary duties of carriers for hire, subject to the conditions in the contract note and their statutory rights; and at the reduced rate carrying at the owner's risk exempt from all liability not occasioned by the wilful misconduct of their servants acting within the scope of their authority; that the plaintiff elected to have the horse carried at the reduced rate, and that the injuries complained of were not occasioned by wilful misconduct of the defendants' servants. The condition on which this defence is based was under review in this Court in Moore v. The Great Northern Railway Company (1), and was decided to be reasonable. The learned Judge ruled at the trial that there was no evidence of wilful misconduct on the part of the defendants' servants; but on the issue of negligence the jury found for the plaintiff with £25 damages. No objection is now made to this ruling or finding; but, although the defendants' counsel called for a direction on the special defence, the learned Judge withdrew that defence from the jury (thus in effect directing on that defence for the plaintiff), and entered the verdict and gave judgment for the plaintiff with £25 damages. This verdict and judgment for the plaintiff the defendants now seek to set aside. The facts proved at the trial and material for present consideration are, shortly, these: — Creighton (plaintiff's servant) whose authority in the matter is not questioned, knew that the defendants gave notice that horses were received, forwarded, and delivered by them only on the terms and stipulations of express contract in defendants' printed ticket offering to the customer his choice of a full or reduced rate of carriage with the different liabilities attached to each rate, which ticket was to be filled up with

the rate when selected by the customer and signed by or on behalf of the owner. Creighton had personal experience of sending horses by the railway: he had often “booked horses,” and therefore knew that the defendants permitted their customers to postpone taking and signing the ticket until the horse was placed in the horse-box ready for conveyance; and to reserve, until he came to take and sign the ticket, his election at which rate and under what liability he elected to send the horse. Accordingly, Creighton brought the horse to the defendants' station for the purpose of sending the horse to Dublin by the defendants' railway on the terms on which alone he knew the defendants would receive, forward, and deliver the horse, and he proceeded, with...