O'Leary v Wood Ltd

• Jurisdiction: Ireland
• Judgment Date: 01 January 1965
• Date: 01 January 1965
• Court: Supreme Court

O'Leary v. Wood Ltd.

JOHN O'LEARY

Plaintiff

and

JOHN A. WOOD LIMITED, Defendants (1)

Supreme Court.

Negligence - Fatal accident - Liability - Lorry drawing low-loader being driven at walking pace through city streets - Young boys taking rides on low-loader - Driver and helper unable to see boys on low-loader - Top of low-loader two feet three inches from ground - Boys jumping off at intervals - Boy of eight years falling in jumping off - Boy run over by low-loader and killed - Allurement - Concealed danger - Evidence.

L. was the father of F., a young boy aged eight years. F., with other young boys, stole a ride upon a low-loader as it passed through the streets of C.,carrying a diesel-engined road roller. The top of the platform of the low-loader was two feet and three inches from the ground and was not fully occupied by the road roller being carried thereon, there being a space of about a foot wide on each side of the machine on which the young boys could easily sit or stand. The boys at various stages of the journey jumped off the low-loader, and F. in doing so fell and was run over by the low-loader and killed. In an action for damages brought in the High Court by the boy's father the trial Judge withdrew the case from the jury at the end of the plaintiff's evidence on the ground that there was no foreseeable risk of danger and it was stretching foreseeability beyond reasonable limits to ask the jury to infer that there had been any such risk. It was contended by the plaintiff that the low-loader was an allurement to young children and was, therefore, a trap. On an appeal by the plaintiff to the Supreme Court, it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Kingsmill Moore and Haugh JJ.), affirming Murnaghan J., 1, that the low-loader was neither an allurement nor a concealed danger to the deceased boy;

2, That an object should not be considered an allurement unless the temptation which it presents is such that no normal child could be expected to restrain himself from intermeddling even if he knows that to intermeddle is wrong;

3, That whether an object is an allurement or not must be judged objectively before and not after the event.

Appeal from the High Court.

On the 20th August, 1961, the servants of the defendant Company were driving, through the streets of Cork, a lorry, to which was attached a "low-loader". On the low-loader was a diesel-engined road roller, leaving a space on the platform about one foot wide on each side. The platform was two feet and three inches in height from the gound and the lorry was travelling at a fast walking pace. The lorry during its journey passed a large primary school soon after the pupils had been released therefrom. The deceased boy, with some companions, was about a quarter of a mile from the school entrance on his way home when the lorry overtook them. At that time there were a number of boys on the low-loader and the deceased, with his three companions, boarded the loader as well. At the time the boys boarded the loader it was thought by some witnesses that there were about fifteen boys already thereon. The lorry proceeded on its way, the driver and helper being unaware by reason of the construction of the

lorry of the presence of the boys on the loader. The boys alighted as they neared their respective homes, all of them jumping off the low-loader and landing safely, with the exception of one who sprained an ankle. The deceased boy was one of the last to leave and he tried to get off without any help. He apparently missed his footing on the kerb, which at that spot was approximately six and a half inches high, and staggered backwards and fell in front of the left back wheel of the loader which passed over and crushed him and caused his death. An action for damages for negligence was brought in the High Court by his father. The boy at the date of his death was aged eight years and eleven months.

At the conclusion of the evidence for the plaintiff the trial Judge (Murnaghan J.) withdrew the case from the jury, holding that there was no evidence upon which the jury could reasonably find for the plaintiff. From that judgment the plaintiff appealed to the Supreme Court. The grounds of appeal were 1, that the learned Judge was wrong in law in withdrawing the case from the jury and directing verdict to be entered and judgment to be recorded for the defendants;

2, That the learned Judge was wrong in law in holding that on the evidence adduced by the plaintiff there was no case for the defendants to answer;

3, That the learned Judge was wrong in law in holding that there was no evidence on which a jury acting reasonably could find that the defendants were guilty of negligence;

4, That the learned Judge misconstrued the evidence and failed adequately to advert to the issues arising on the evidence adduced by the plaintiff and was wrong in law in not permitting the jury to decide on the allegations and on the evidence adduced in support thereof.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

I agree with the judgment about to be delivered by Mr. Justice Kingsmill Moore.

Kingsmill Moore J. :—

This is an action for damages for negligence brought by the father of a boy, Francis O'Leary, who was killed tragically while still a month short of completing his eighth year. At the conclusion of the evidence for the plaintiff the trial Judge withdrew the case from the jury, holding that there was no evidence of negligence. The plaintiff now appeals on the ground that the Judge was not warranted in so doing.

On the 20th August, 1961, the servants of the defendant Company were driving a lorry through the streets of Cork. Attached to the lorry was what is known as a "low-loader"and on the low-loader was a diesel-engined road roller, the modern small-size equivalent of the older steam roller. The top of the platform of the low-loader was only two feet three inches from the ground and was not fully occupied by the road roller, there being a clear space of about a foot wide on each side of that machine on which a boy could conveniently stand or sit and on to which, by reason of its low height, he could jump or scramble when the machine was stationary or travelling slowly. The towing lorry had high sides and a backboard, so that the driver and helper in its cab were unable to see the platform of the loader and boys could get on to it unobserved.

The route of the lorry took it past the entrance to the North Monastery School, a very large primary school with some hundreds of pupils, at a time shortly after the boys had been released for the mid-day break. Francis, with some companions, was about a quarter of a mile from the school entrance making his way home when he was overtaken by the lorry. Already a number of boys—one witness put it at 15 —had succeeded in boarding the platform of the low-loader, and Francis with his three companions followed suit. They ran beside the loader, which was being pulled at something over a walking pace, and were helped on by the boys who were already in position on the loader. Francis, who was some three years younger than his companions, was pulled up by two boys, each taking a hand.

The lorry went on its way, the driver and helper knowing nothing of the presence of the boys on the loader, and one by one, as they came near their...