Mabel Walker v Great Northern Railway Company of Ireland

• Jurisdiction: Ireland
• Judgment Date: 26 January 1891
• Docket Number: (1890 — E. No.201.)
• Date: 26 January 1891
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before O'BRIEN, C.J., HARRISON, O'BRIEN, and JOHNSON, JJ.

(1890 E. No.201.)

MABEL WALKER

and

GREAT NORTHERN RAILWAY COMPANY OF IRELAND

Richards v. RichardsENR Johns. 754, at pp. 762, 763.

The George and Richard L. R. 3 Ad. & Ecel. 466.

Wallis v. HodsonENR 2 Atk. 116.

Burdet v. Hopegood 1 P. W. 486.

Blasson v. BlassonENR 2 De G. J. & S. 669.

Hale v. Hale Finch's Prec. In Ch. 50.

Musgrave v. ParryENR 2 Vern. 710.

Rex v. Joseph SeniorENR 1 Mood. C. C. 346.

The Queen v. WestENR 2 Car. & Kir. 784.

Thelluson v. Woodford 4 Ves. 227.

Dalyell v. TyrerUNK 28 L. J. Q. B. 52.

Marshall v. York, Newcastle, and Berwick Railway Co.ENR 11 C. B. 655.

Austin v. Great Western Railway Co.ELR L. R. 2 Q. B. 442.

Stockdale v. Lancashire and Yorkshire Railway Co. 11 W. R. 650.

Martin v. Great Indian Peninsular Railway Co.ELR L. R. 3 Ex. 9.

Foulkes v. Metropolitan District Railway Co. 4 C. P. Div. 267; 5 C. P. Div. 157.

Richards v. RichardsENR Johns. 754.

Thelluson v. Woodford 4 Ves. 335.

Wallis v. HodsonENR 2 Atk. 117.

Doe v. ClarkeENR 2 H. Bl. 399.

Rex v. SeniorENR 1 Moody, C.C. 346.

Blasson v. Blasson 2 De. G. J. & S. 670.

The George and Richard L. R. 3 Ad. & Eccl. 466.

Stone v. MarshENR 6 B. & C. 551.

Wellock v. ConstantineENR 2 H. & C. 146.

Wells v. AbrahamsELR L. R. 7 Q. B. 554.

The Earl of Bedford's CaseUNK 7 Rep. 8b.

The George and Richard L. R. 3 Ad. & Eccl. 480.

Macawley v. Furness Railway Co.ELR L. R. 8 Q. B. 57.

Hall v. North Eastern Railway Co.ELR L. R. 10 Q. B. 437.

Whelan v. Cork Steamship Co. Ir. R. Sc. L. 393.

Grill v. The Iron Screw Collier Co.ELR L. R. 1 C. P. 612.

Blasson V. BlassonENR 2 De G. J. & S. 665.

Earl of Bedford's CaseUNK 7 Rep. 8b.

Burnet v. Mann 1 Vez. 156.

Jaggard v. JaggardENR Finch's Prec. Ch. 175.

Long v. BlackallENR 7 T. R. 100.

Millar v. Turner 1 Vez. 85.

Wallis v. HodsonENR 2 Atk. 115.

Robinson v. LittonENR 3 Atk. 209, at p. 211.

Hale v. HaleENR Finch's Prec. Ch. 50.

Blasson v. BlassonENR 2 De G. J. & S. 665, at p. 670

Alice Weston's CaseENR Year Book XI. Edw. 3 (ed. 1883), pp. 138, 139.

Richards v. Richards Jones. Rep. 754.

Earl of Bedford's CaseUNK 7 Rep. 8b.

Long v. ReeveENR 3 Lev. 408.

Doe v. LancashireENR 5 T.R. 49, at p. 60.

Lambert & Olliott v. Bessey Sir Thos. Raym., 421, 423.

Reg. V. LatimerELR 17 Q. B. Div. 359.

Negligence by Railway Company Personal injuries Infant en ventre sa mere Right of action,

VoL. XXVIII.] Q. B. & EX. DIVISIONS. 69 fluctuation of opinion, and contrary rather to my first impression, Q. B. Div. I have been led by the above reasoning to the conclusion that 1891. there is not in the section any sufficiently certain indication of BANE intention to alter the previous law, and that the notice in this case Mina:Lam:ND -which truly states the exact amount of rent and costs ascertained by the decree is right, though it omits to notice the intervening payment of a year's rent made by the tenant. The demurrer must be overruled, with costs. Solicitor for the plaintiffs : John Malone. Solicitors for the defendants : Longfield, Kelly, Armstrong. MABEL WALKER v. GREAT NORTHERN RAILWAY Q. B. Div. COMPANY OF IRELAND (1). 1890. (1890-E. No. 201.) Negligence by Railway Company-Personal injuries-Infant en ventre sa mere -Right of action. In an action against a Railway Company for damages caused to the plainÂÂtiff by the negligence of the defendants, the statement of claim alleged that at the date of the injuries complained of the plaintiff's mother A. W. was quick with child, namely, with the plaintiff, to whom she afterwards gave birth ; that the said A. W., being so quick with child, was received by the defendants as a passenger, to be safely and securely carried for reward to the defendants. Averment that the defendants so negligently and unskilfully conducted themÂÂselves in carrying the said A. W., and the plaintiff, being then en centre sa mere, that the plaintiff was thereby wounded, permanently injured, and crippled : Held, on demurrer, that the statement of claim disclosed no cause of action. ACTION for personal injuries. Demurrer to the plaintiff's statement of claim, which was as follows : 1. At the time of the happening of the injuries hereinafter complained of the defendants were and still are a railway company, (1) Before O'BRIEN, G.J., HARRISON, O'BRIEN, and JOHNSON, JJ. 1891. Jan. 26. 70 LAW REPORTS (IRELAND). [L. R. I. Q. B. Div. having a railway from Armagh to Warrenpoint, in the county of 1890. Down, used by them for the carrying of passengers for hire from SPA,. Armagh aforesaid to Warrenpoint aforesaid. GT. NORTHN. 2. The mother of the plaintiff is Mrs. Annie Walker, of the kaWAY Co. city of Armagh, and on the date hereinafter mentioned was quick with child, namely, with the plaintiff, to whom she subsequently gave birth. 3. On the 12th day of June, 1889, the said Annie Walker, so quick with child as aforesaid, became and was received by the defendants as a passenger upon their said railway, to be by them carried on their said railway a journey from Armagh aforesaid to Warrenpoint aforesaid, for reward to the defendants, yet the defendants so negligently and unskilfully conducted themselves in carrying the said Annie Walker, and the plaintiff, then being en ventre sa mere, as aforesaid, and in managing the said railway and the carriage in which the said Annie Walker was a passenger upon the said railway on the journey aforesaid, that the plaintiff was thereby wounded and permanently injured and crippled and deformed. The plaintiff claimed 1000 damages. R. E. Meredith (with him The Right Hon. S. Walker, Q. C., and James Orr, Q. C.), for the defendants, in support of the demurrer : The infant plaintiff was not at the time of the alleged accident a person in rerum naturet, therefore cannot sustain the present action. Where a person dies leaving his wife enceinte, the common law, not considering the infant en ventre sa mere to be in existence, casts the freehold on the person who is then heir : Cruise's Digest, vol. 3, Title 29, Descent, chap. 3, s. 11. See also Richards v. Richards (1) ; Russell on Crimes, p. 645. Liability of railway companies for injuries to passengers is founded on a contract to carry, express or implied, or a duty to persons who are lawfully on the railway by the company's licence or invitation. In this case their contract was only with the plainÂÂtiff's mother to carry her safely. They never contracted to carry the present plaintiff, and they never received or invited her to be upon their railway for carriage, and therefore no liability arose. (1) Johns. 754, at pp. 762, 763. 71 No analogy can be drawn from cases of unborn infants suing Q. B. Div. under Lord. Campbell's Act for injuries to the parent, as in 1890. The George and Richard (1), because the law under that Act is WALxE1 v. governed by the principles which apply to cases of an infant's GT. NORTRN. property or rights as the child of its parents. RAILWAY Co. No authority can be shown for this action, which is altogether unprecedented. John Stanley and. Gerrard, Q. C. (with them 0' Shaughnessy, Q. C.), for the plaintiff : Life begins, in contemplation of law, as soon as an infant is able to stir in its mother's womb : Black. Com. vol. 1, p. 116; 3 Inst. p. 50. A child en ventre sa mere is a person in rerum natura , and by the rules of the common and civil law is to all intents and purposes a child : Wallis v. Hodson (2) ; Burdet v. Hopegood (3) ; Blasson v. Blasson (4). The Court will grant an injunction in his favour to stay waste : Lutterel' s Case, cited in Hale v. Hale (5) and ...Musgrave v. Parry (6). If a child en ventre sa mere receives before birth from a person a mortal wound the act amounts to murder : Rex v.Joseph Senior (7); The Queen v. West (8). See also Russell on Crimes, vol. 1, p. 646; 3 Inst. p. 50. For the assertion of rights, or the protection of the property, of an infant en ventre sa mere, the law considers a child to have commenced its existence as soon as it is conceived in the womb : Thelluson v. Woodford (9) ; and see also Daniell Ch. Pr. p. 105 ; and such a child is now considered for all purposes as if actually born. The right of an infant en ventre sa mere to recover damages by virtue of the provisions of Lord. Campbell's Act has been established : The George and Richard (1). A. passenger's right to be safely carried does not depend upon his having made a contract but upon the fact that he is a passenger, and that that fact casts on the company a duty to carry safely. The plaintiff was in the train lawfully, without fraud, and with the company's consent, and whilst so upon the (1) L. R. 3 Ad. & &el. 466. (8) 2 Vern. 710. (2) 2 Atk. 116. (7) 1 Mood. C. C. 346. (3) 1 P. W. 486. (8) 2 Car. & Kir. 784. (4) 2 De G. J. & S. 669. (9) 4 Ves. 227. (5) Finch's Proc. in Ch. 50. 72 LAW REPORTS (IRELAND), [L. R. 1. Q. B. Div. railway was injured by the admitted negligence of the defendants, 1890. and is entitled to compensation : Dalyell v. Tyrer (1) ; Marshall v. WALKER York, Newcastle, and Berwick Railway Co. (2) ; Austin v. Great The Right Hon. S. Walker, Q. C., in reply. Cur. adv. vult. O'BRIEN, C. J. :- This case comes before us on demurrer to the statement of claim, which states-[His Lordship read the statement of claim]. Now, this is the statement of claim, which has been challenged by demurrer as disclosing no cause of action. Counsel for the company say no such action lies ; that at the time the injuries were inflicted the child was not a person in rerum natura ; that it had no personality ; that it was simply part of the mother, and that therefore no action can be maintained. In support of their contention they principally rely upon an undoubted proposition of criminal law, that under no circumstances is it held, at the present day, to be murder to destroy a child whilst in the womb. They quote from Russell on Crimes, page 645, where it is stated, on the authority of Lord Hale, " that an...