Power v Dublin United Tramways Company Ltd

• Jurisdiction: Ireland
• Judgment Date: 26 February 1926
• Date: 26 February 1926
• Docket Number: (1925. No. 5246.)
• Court: Supreme Court (Irish Free State)

Supreme Court.

(1925. No. 5246.)

Power v. D. U. T. Co.

JULIA POWER

Plaintiff

THE DUBLIN UNITED TRAMWAYS COMPANY, Ltd. (1896), Defendants (1)

Negligence - Passenger alighting from tramcar - Accident causing death of passenger - Signal to start tramcar given by another passenger - Conductor's duty - Witness's conflicting statements - Two classes of evidence - Statement by deceased passenger as to cause of accident - Admissibility - Jury's findings contrary to Judge's charge - No evidence to support findings - Perverse verdict - Trial Judge and jury's findings - Duty of Judge - New trial.

Motion by the plaintiff for an order that the verdict of the jury found by direction of the Judge and the judgment entered thereon for the defendants be set aside, and that in lieu thereof a new trial be ordered; or, in the alternative, that judgment be entered for the plaintiff for the sum of £500. The grounds upon which the motion was founded were:—(a) That on the findings of the jury the learned Judge should have entered judgment for the plaintiff for the sum of £500; (b) That the learned Judge misdirected himself in law in directing that there was no evidence to support the findings of the jury in favour of the plaintiff; (c) That the learned Judge should have acceded to the requisition of counsel on behalf of the plaintiff and entered judgment for the plaintiff in accordance with the findings of the jury. There was a cross-motion by the defendants asking that the findings of the jury be set aside on the ground that they were against evidence and the weight of evidence and were perverse.

The action was brought by Julia Power, as widow and sole dependent of Patrick Power, deceased, for damages for the death of her husband from injuries received on February 10th, 1925, while a passenger on the defendants' tramcar, by the negligence of the defendants' servants. The writ was issued on April 8th, 1925, and on May 8th, 1925, a statement of claim was delivered setting out the particulars of negligence as follows:—(a) The tramcar was driven at an excessive speed; no look-out was kept; (b) The said tramcar was overcrowded and thereby rendered dangerous; (c) Not stopping at the stopping place at Dorset Street as required of them in pursuance of the Board of Trade regulations and as requested by the deceased so to do, the result of which was the deceased had to remain on the platform, which was crowded, and was thrown from same by the excessive speed of the car; (d) By continuing to allow the car to proceed at an excessive speed and refusing to stop the car when required by the deceased, and compelling him to remain in a dangerous position on an overcrowded platform, by reason of which acts of negligence the deceased was thrown from said car and sustained serious injuries.

The defendants in their defence, delivered on May 18th, 1925, denied negligence, and averred that the injuries from the effects of which the deceased died were caused solely by his own negligence. A reply joining issue was delivered on May 27th, 1925.

On October 27th, 1925, the plaintiff delivered an amended statement of claim containing the two following additional paragraphs:—"(e) The conductor of the said tramcar was negligent in not being himself on the platform when the car stopped at the corner of Frederick Street and Dorset Street, and (or) the said conductor was negligent in permitting the bell of the said car to be under the control of a passenger or passengers on the said platform, and (or) the said conductor was negligent in not anticipating that a passenger on the platform might precipitately ring the bell, whereby, as the deceased was in the act of alighting from the said car at the corner of Frederick Street and Dorset Street, where the car had stopped, a passenger on the platform of said car precipitately pulled the bell and the car started, and the deceased was thrown from the said car, and by reason thereof sustained the injuries from which he died on the 10th of March, 1925; (f) in the alternative, the plaintiff repeats the matters set out in the aforesaid paragraph, and says that on the occasion in question the defendants failed to provide a reasonably safe egress from the said car for the deceased, who was lawfully travelling on the said car as a passenger."

The action was tried before O'Shaughnessy J. and a common jury of the City of Dublin on November 18th, 1925.

The principal witness for the plaintiff was Francis Thomas M'Mahon, a nephew of the deceased. This witness deposed that the deceased and himself boarded a No. 19 tramcar at Nelson's Pillar between a quarter to eleven and eleven o'clock on the night of February 10th, 1925, to go to Blessington Street. It was a tram with an open or uncovered top, and it was full both inside and on top. Witness and his uncle went on top and sat at the front of the car. After the car had stopped at the Parnell monument the collector mounted the top to collect fares. The car stopped next near Findlater's Church—a compulsory stopping place. The collector was still on top collecting fares, and somebody rang the bell to restart the car. When the car reached North Frederick Street and Dorset Street witness and his uncle stood up in order to alight at the corner. There were a lot of people before them getting down, and they were the last to get down. Witness was in front of the deceased, and when they got to the step of the tram it was still stationary. Describing what occurred next, witness deposed:—

"I got down swiftly on to the road. My uncle was getting down after me. He was down on to the step and was holding the middle bar with his right hand. He was stepping off the car and was facing towards Leavy's publichouse when a civilian passenger pulled the bell. The car gave a jolt then, and my uncle kind of stumbled forward still holding on to the bar with his right hand and running along after the tram. I ran after him keeping pace with him right across the road. When it got just into Blessington Street the driver accelerated the speed of the car, and my uncle was forced to let go his hold, and he fell right flat on the road. Just for the moment I did not mind my uncle; I was looking after the tram, thinking that the car would stop when they saw my uncle on the ground. As I was looking at it I saw the conductor coming down the stairs, and two passengers and the conductor looked out of the car. I just raised my hand a bit, but the car proceeded on its way and did not stop."

At the coroner's inquest on the deceased, held on March 13th, 1925, M'Mahon deposed:—"We were travelling on top of an outgoing Glasnevin tramcar about 10.45 p.m. on the 10th of February last. I was with the deceased, Patrick Power. When the tramcar reached Dorset Street we proceeded to alight, but owing to the number of people on the stairs it took some time to get down, and when we reached the platform the tram had been restarted by one of the passengers who pulled the bell. The two of us stepped from the tram while it was in motion, but the deceased fell forward, and as he kept hold of the upright bar he was dragged for a distance of about thirty yards, when he released his hold on the bar and fell on the roadway. As he appeared to be injured, he was taken to the Mater Hospital. The tram did not stop; it went on. The conductor came down, but did not stop the car. I knew the conductor. I do not know the number of the tram. No person on the car attempted to render any assistance. I did not report the matter to the police, as I did not think it was serious. It was a stopping place, and we could have got off easily only for the passenger pulling the bell." When asked in cross-examination whether the statements he had made at the inquest were true, the witness said they were to a point. "I was very fond of my uncle, and wasn't thinking of anything. I was very put out about my uncle's death . . . I pleaded distress at the time. I was not concerned what way he died." When his uncle and himself reached the platform, he said, the tram had not been restarted, and it was inaccurate to say that the two of them stepped from the tram while it was in motion.

On May 28th, 1925, in response to a letter from the defendants' solicitors, Messrs. Casey, Clay, & Collins, M'Mahon called at their office and made the following statement, which was taken down in writing by one of the assistants:—

"As the car was approaching the junction of Blessington Street and Dorset Street we left our seats with the intention of alighting at the corner. When we arrived at the platform it was much congested. The tram stopped at the corner of Blessington Street, and we were about to alight from the car when one passenger pulled the bell, the result being that the tram proceeded. I then got off while it was in motion and was followed by my uncle, Mr. Power. I landed on the road safely, but my uncle, when he got on to the road, instead of letting go the bar, held on to it, with the result he was dragged along for about fifty-two paces. The tram was accelerating its speed at this time. As the tram increased its speed Mr. Power let go his hold and fell flat down on his face and hands." When the statement was read to him in the office he altered the distance from fifty-two paces to thirty-two paces. M'Mahon called twice subsequently at the office for a copy of the statement, but his request was refused. In the course of cross-examination the witness said he did not know at first that Mr. Collins was solicitor for the Tramways Company. He did not mind about the statement, as he was anxious to get back to work.

An application for a direction made by the defendants' counsel at the close of the plaintiff's case was refused.

For the defendants, an inspector was examined to show that the conductor of the tramcar could not be traced. The only other witness examined for the defendants was Dr. John Sweeney, who had attended to the deceased in hospital. He was asked...