Pettigrew v Farrell

CourtHigh Court
Judgment Date01 March 1956
Neutral Citation1930 WJSC-HC 898
Date01 March 1956
Pettigrew v. Farrell

JUDGMENT of LAVERY J. Delivered 1st March, 1956.



Submitted for Revision by Lionel J. Winder, Barrister-at-Law, Reporting on behalf of the Incorporated Council of Law Reporting for Ireland.


Lavery J.


At the close of the Plaintiff's case there were two matters which, if raised, would call for the decision of the trial Judge.


The first is:- Was there at that stage evidence proper for the consideration of the jury that the defendant had been guilty of negligence causing the accident?


The onus of proving negligence on the part of the defendant is quite clearly on the plaintiff and if he fails to adduce evidence which would justify the jury in finding the defendant negligent the action must fail and be dismissed at the close of the plaintiff's case and the defendant is not required to go into evidence.


It is not, however, necessary for the plaintiff to show that the defendant must be found negligent. It is sufficient if the facts proved (if the jury accept the evidence) would entitle the jury to take the view that the accident as a matter of probability was caused by the defendant's negligence. The credibility of the witnesses, the weight to be given to their evidence and the inferences to be drawn from that evidence are of course for the jury and not for the judge.


In O'Rourke v. McGuinness 1942 I.R. 554 Murnaghan J. said:

"In an action for negligence the onus of proving negligence is on the plaintiff but there is a distinction between onus of proof and the balance of probability from proved facts. This is not a case of res ipsa loquitur at all".


That was a case of a highway accident where the plaintiff was unable to give any direct evidence describing the collision and certain marks on the vehicles involved and on the road were held to be sufficient prime facie evidence of negligence.


There are many such cases. See for example the recent English case:- Moore v. R. Fox & Sons 1956 1 A.E.R. 182.Evershed M. R. and Birkett L.J. dealt with the appeal on the basis of the supposed principle of res ipsa loquitur but Romer L.J. said in the course of a short judgment: "For myself, however, I am doubtful "whether the principle of res ipsa loquitur applied to the accident "..... and I would prefer to rest my conclusion on the view that "at the close of the whole evidence which the plaintiff called she "had established a prima facie case of negligence against the "defendants which they failed by their evidence to displace".


The facts of the case are not relevant. I refer to it only to illustrate the proper approach.


To return to the case of OÆRourke v. McGuinness, the words of Murnaghan J. in my opinion state shortly the manner in which this question which is simple to state but may be difficult to answer, should be approached.


At the trial when the plaintiff closed his case Mr. Peart for the defendant made his submission to the Judge in these words:-


P.50. "I would ask your Lordship to withdraw the case from the "jury. On the evidence before the Court it would be impossible "for a reasonable jury to discharge the deceased from contributory "negligence.


"As the evidence stands at the moment there is no direct "evidence of any negligence against the defendant. I anticipate "the furthest my friends could put it is that the jury might draw "the inference from the brake mark and the position of the vehicle "that the defendant was not keeping a proper look out.

"If this is so, this position seems to arrive inevitably "on the evidence ....."


Mr. Peart then went on to develop at length his submission that the deceased must be found guilty of contributory negligence - a proposition of course wholly distinct from the question of the defendant's negligence.


It is quite clear, therefore, that Mr. Peart accepted that, applying the principles I have stated above, it would be open to the jury to find the defendant negligent.


I think he was right in this. As it was admitted at the trial - though not in this Court - it is unnecessary for me to examine the evidence in great detail and indeed if the case is to be tried again it might be inadvisable for me to do so.


Apart from the marks on road and on the car, the position of the car and of the injured lady and the nature of the injuries, the jury would also have to consider in relation to the defendant's negligence not only failure to keep a proper look out but also whether he was travelling too fast in the circumstances and perhaps other acts or omissions which might constitute negligence. The evidence was that a bus had stopped on the left side of a main road opposite the mouth of a side road opening onto the main road on the opposite side and the possibility - indeed the probability - existed that a passenger or passengers had alighted therefrom and would be crossing the road to go to their homes on the side road. Such a situation the jury might think called for special care and for a reduction of speed, a vigilant look out and a sounding of the horn giving warning of approach.


It is not for this Court to say how these considerations should be dealt with.


Having heard Mr. Peart it was for the learned Judge to pronounce his ruling on the point of law raised.


Instead of doing so he took the peculiar course of recalling the jury and addressing them.


No doubt his decision on the point of law is to be found in what he said to the jury but his natural wish to explain courteously to the jury why he was withdrawing the case from them makes it somewhat difficult to discover clearly what his decision in law was.


I would respectfully suggest that the proper course would have been to rule the point of law and having done so to recall the jury and explain the position to them and, if he considered it necessary, to get them to answer questions as directed by him.


When hearing Mr. McBride for the plaintiff in answer to Mr. Peart the Judge is reported as observing -


"I have always to assume negligence of the defendant in a "case of this kind".


This can scarcely be an accurate report of the Judge's actual words but I understand it as meaning that he accepted - for the purpose of his ruling - Mr. Peart's admission that there was evidence for the jury of negligence on the part of the defendant.


Disarmed by this observation, Mr. McBride confined himself to dealing with the question of the deceased's contributory negli-gence.


Addressing the Jury the Judge said - I quote only the phrases which appear to me to express his decision - "It is for him (the "plaintiff) to prove that this accident was caused by the defendant's "negligence".


"I will have to tell you that it lies on the husband to prove "this accident was occasioned by the negligence of the motorist".


"Unless you are satisfied on the evidence that he was to blame, "the husband could not succeed. The burden of proving the facts "lies on the plaintiff. It is unfortunate in this case that nobody "witnessed the accident".


And later:- "The defendant asks, on that evidence, such as "it is, to say that no jury could reasonably held him guilty of "negligence" ....


"I have a judicial duty to perform and I am bound to accede "to the request".


It would be wrong to examine too minutely every word the learned Judge used, but it seems to me clear that he determined the matter by holding that there was no evidence fit for the consideration of the jury that the defendant was guilty of negligence.


The Judge was of course wrong in saying that nobody witnessed the accident. The deceased did so but, more important, the defendant must also have done so.


He was also, in my opinion, wrong in saying that "the burden of proving the facts lies on the plaintiff".


This is an overstatement. All that is required of the plaintiff is to give evidence of facts which if unexplained would justify the jury in holding the defendant negligent.


Moreover as I have shown the Judge was not asked to rule on this point. The defendant did not seek to maintain the proposition which the Judge ruled in his favour. In fact, he conceded the contrary.


In any event in my opinion for the reasons I have stated the decision of the learned Judge on this issue was erroneous.


It does not appear clearly how, if at all, the Judge dealt with the submission made by Mr. Peart that on any view of the facts the deceased must be found guilty of contributory negligence and that therefore there was no matter of fact to be decided by then to determine this issue.


Having decided that the jury could not reasonably hold the defendant guilty of negligence and that the case should be withdrawn from them the Judge - as his ruling is recorded - went on:


"It was her duty equally with his to take reasonable care in "crossing the road. I have a judicial duty to perform and I am "bound to accede to the request.

"In this case, I do not see how the lady could be said, on "the evidence, a lighted car some distance on her left whether she "walked, ran or stumbled how it could be said she had taken her "legal duty, her legal right, to cross the road."


The learned Judge cannot be accurately reported but I am prepared to assume that he may have intended to decide that there was no escape on the admitted facts from the conclusion that she was guilty of contributory negligence as supplementary and perhaps alternative to the main ground of his ruling. I find, however, some difficulty in following how, having stated, correctly, that the duty on each of the parties was equal he could as a matter of law acquit the defendant of negligence and convict the deceased of contributory negligence.


I could understand it if he had found that the defendant mightbe found guilty and the deceased must be so found but this he clearly did not...

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