Smith v Córas Iompair Éireann

JurisdictionIreland
JudgeGRIFFIN J.
Judgment Date01 January 1991
Date01 January 1991
Docket Number[S.C. No. 397 of 1988],(397/88)
CourtSupreme Court

1990 WJSC-SC 2975

THE SUPREME COURT

Finlay C.J.

Griffin J.

Hederman J.

McCarthy J.

O'Flaherty J

(397/88)
SMITH v. CIE
ANTHONY SMITH
Plaintiff/Appellant
v.
CORAS IOMPAIR EIREANN
Defendant/Respondent

Citations:

PURTILL V ATHLONE UDC 1968 IR 205

MCNAMARA V ELECTRICITY SUPPLY BOARD (ESB) 1975 IR 1

DONOVAN V LANDY'S LTD 1963 IR 441

O'KEEFFE V IRISH MOTOR INNS 1978 IR 85

FOLEY V MUSGRAVE CASH & CARRY LTD UNREP SUPREME 20.12.85 1985/8/2145

Synopsis:

NEGLIGENCE

Occupier

Transport authority - Railway track - Spare rail - Trespasser - Fall - Plaintiff struck by train - Personal injuries - Liability of defendants - Danger - Reasonable foresight - Plaintiff's action dismissed - (397/88 - Supreme Court - 29/11/90) 1991 1 IR 314

|Smith v. Coras Iompair Eireann|

1

JUDGMENT delivered the 29th day of November 1990by GRIFFIN J. [NEM DISS]

2

In this action the plaintiff claims damages against Coras lompair Eireann ("C.I.E.") for injuries sustained by him by reason of the alleged negligence of C.I.E., its servants and agents on its railway near Con Colbert Road, Inchicore on the 14th May 1981. The action was tried in the High Court by Egan J. and the claim of the plaintiff was dismissed by him. From that decision, the plaintiff has appealed to this Court.

THE FACTS
3

On the 14th May 1981 the plaintiff was very severelyinjured, losing both legs, when he was in collision with a train on the railway of C.I.E. near Con Colbert Road, Inchicore. At the time he was aged 20. The accident occurred between 9.30 p.m. and 10.00 p.m. when it was dusk.

4

Between Con Colbert Road and the railway there is a field and the boundary between the field and the railway is a stone wall which is overgrown with ivy and bushes. The average height of the wall is approximately 4 but in places it increases to about6 '. In one place there is a dip in the wall where it is approximately 2 '4 ' high, where the wall apparently became broken down at some stage. On the railway side of the wall there is an embankment, the top of which is approximately 15 ' to16 ' above the level of the railway. The embankment is covered with brambles and briars and there is a steep decline from the top to the railway level. At that point the grass and briars have been beaten down and there is what might be called a rough path down the embankment. When one is descending the embankment, to the left is in the direction of HeustonStation, and to the right is in the direction of Ballyfermot. At that point there is a view of several hundred yards in each direction.

5

On the side of the railway opposite to the embankment there is a sheer wall 14 ' high, above that a plateau some few yards wide, again covered in brambles and briars, and a further wall 4 'high surmounted by galvanized iron, 3 '6 "approximately in height, the latter being the boundary fence of Woodfield Cottages which lie between the railway line and Sarsfield Road, Inchicore. There are two bridges over the railway joining Con Colbert Road with Sarsfield Road - from the place where the dip is in the wall to the bridge in the direction of Heuston Station is approximately 250 yards; the bridge on the Ballyfermot side was stated to be much further away.

6

On the railway there were three sets of tracks. The rails on each set were a uniform 5 '8 " apart. Facing Heuston Station, the distance between the left-hand track and the embankment is approximately 6 '. The distance between each of the other two sets of tracks isapproximately 6 '6 ". The areas between the tracks were referred to in evidence by the engineer as "passageways", but they are in fact areas to provide clearance for trains. The width of a train is not stated, but it is considerably wider than 5 '8 ", and portion of trains on each of the lines will therefore overhang the intermediate area. Mr. O'Neill, the engineer who gave evidence on behalf of the plaintiff, described the "passageways" to the side of and between the lines as being "made of ballast broken stones - stones which are very coarse, with sharp corners". In places the stones vary in size, and the sleepers and the ballast around them can be at a similar or different level. In direct examination he said that, if the surface is flat, it is adequate for walking but is not a good surface for running, but in cross-examination he conceded that it was not a good surface for walking. The surface is shown in photographs number 5 and 7 of the black and white photographs and number 8 of the coloured photographs produced on behalf of the plaintiff. The lines are mounted on sleepers 2 '8 1/2 " apart. The photographsshow the sleepers to be wider than the tracks, and to project into the "passageways" for some distance.

7

On the evening of the accident the plaintiff, and a companion Anthony Killeen, went to the field adjoining Con Colbert Road between 9.30 and 10.00 p.m. to see a mare belonging to the plaintiff in that field. The mare was in foal and they saw two youths approximately 15 to 16 years old, one of whom was riding the mare and the other running along side. They ran down the field towards the youths, who ran away, going through the gap hereinbefore referred to and down the embankment and along the railway lines. The plaintiff and Anthony Killeen gave chase, and they also ran down the embankment and ran along the "passageway" between the embankment and the left line facing Heuston Station, Anthony Killeen being in front. Whilst running, the plaintiff tripped and fell - Anthony Killeen placed this fall as "when they got down near the bridge". The plaintiff picked himself up and continued the pursuit. The two youths they were chasing had a long lead on them, and one went up the embankment close to thebridge and out onto the road. He was followed by Anthony Killeen. The other ran under the bridge and the plaintiff followed him. Under the bridge the plaintiff ran out onto the tracks and his recollection is that he was in the "passageway" between the left tracks and the middle tracks. When he was under the bridge he saw a train, which was lighted, coming from the opposite direction, The train was coming on his right, but he did not know if it was coming on the middle line or on the line to the right-hand side. He continued to run, and had got from 20 to 30 yards beyond the bridge when he tripped and fell. At that time the front of the train had gone past him, and although he does not recollect colliding with the train, there is no doubt that a collision took place.

8

In evidence he described his objective in trying to catch the youth he was following as being "to beat him up". He described his running at the time he tripped and fell as running "flat out", and, (Q. 341) "I was running as fast as I could go". He did not see anything in front of him, as he was looking at the fellow he waschasing and his entire concentration was on him.

9

Within approximately 5 minutes of the occurrence of the accident, Anthony Killeen came back to the railway line, and found the plaintiff close to the embankment on the left-hand side as one faces Heuston Station. More or less opposite where the plaintiff was lying he found lengths of railway track in the space between the tracks i.e. in what has been referred to as the "passageway". They were lying lengthwise, but were not quite parallel with the railway lines. As will later appear the learned trial Judge found that, on the probabilities the plaintiff tripped and fell over a length of...

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