F.C. 1898 MATTHEWS v. THE TRUSTEES EXECUTORS AND AGENCY COMPANY LIMITED. against those particular investments, and that the plaintiff Mrs. Matthews had no right of action in respect of the misinvestment. The defendant then goes on to deal with the investment in October 1892, the accepting of new receipts in the new company. As to that certain other defences are pleaded, but not the statute. The statute could not be pleaded to that if it was a breach of trust. His Honor decided that there was a breach of trust in the original deMadden, C.J. posits in 1888, 1889, and 1890, and directed the trustee company to make good the original trust fund, and held that the Statute of Limitations had run against the female plaintiff, and that therefore she was not entitled to a cause of action similar to that which the male plaintiff had; but, having directed the trust fund to be reinstated, for the security of the male plaintiff, the learned Judge considered the female plaintiff as life tenant was entitled to the advantage of the proper investment -that there was no reason for depriving her of the interest which would accrue from the proper investment of the reinstated fund, and that she was entitled to the income of that fund for her life, notwithstanding the Statute of Limitations. There is an appeal from so much of the decision as directs that. It is contended on behalf of the defendant by Mr. Cussen that A'Beckett, J., was wrong in directing that the female plaintiff should get the income of the restored fund to the full extent, and that she was entitled to the income of only so much of the fund as would represent the market price of the deposit receipts representing the investment. We think A'Beckett's, J., decision was right, but for reasons different to those which commended themselves to him. We think it probable-we offer no opinion on the other matters-but we think that if the investments referred to in paragraphs 8, 9, and 10 of the statement of claim made in 1888, 1889, and 1890 were only to be regarded, the statute would probably apply that its effect would be to deprive the female plaintiff of at least the full amount of the interest arising from the restored fund. For some reasons which were to A'Beckett, J., sufficient, he thought she was entitled. But before us it has been pointed out that the new transaction which arose in 1892 by which the trustees, instead F.C. 1898 MATTHEWS THE TRUSTEES EXECUTORS AND AGENCY COMPANY LIMITED. of realizing the fund when the old bank got into difficulties and subsidizing it by moneys of their own, as was their plain duty to have then done, entered into an entirely new transaction. They took the receipts of the new bank for longer periods in discharge of the old bank, and did, in fact, discharge the old bank. We think that was an effectual dealing with the funds of the estate -in this way-that they could have followed the funds and that they took on themselves there and then the further misuse of the fund instead of restoring the fund-getting what they Madden, C.J. could out of the old bank, and making up the balance out of their own pockets. It was intended to be an operation effected with the trust funds, and we think that was a transaction for which the female plaintiff might have complained apart from the others altogether. We think if she made that alone her charge she might succeed on it. That being so, manifestly the breach of trust did not fall within the statutory period, and it is not pleaded against it. Therefore on that ground we think His Honor's judgment is right in directing not only that the fund be restored, but that the life tenant be entitled to the proceeds of its investment during her life. Appeal will be dismissed with costs. That also disposes of another point which was raised, that A'Beckett, J., had no jurisdiction to order the successful defendant to pay the unsuccessful plaintiff's costs. By this judgment she is successful. As to the other point, that the judgment of A'Beckett, J., should be varied on the ground that the tenant for life was entitled only to the product of so much of the restored fund as would be equivalent to the value of the misinvested fund, we abstain from commenting, because in our opinion it is not necessary to consider it in this action. As to the other point, whether or not this amounted to a specialty debt, we offer no opinion, because it is unnecessary. WILLIAMS, J. If this was a breach of trust in October 1892, as I think it was, when the trustee company changed deposit receipts in the old company for deposit receipts in another new company of equivalent value-equivalent in amount--if that was a breach of trust, the statute would F.C. 1898 MATTHEWS v. THE TRUSTEES EXECUTORS AND AGENCY COMPANY Williams, J. only begin to run against the female plaintiff from that time, and as six years would not have elapsed between that time and the commencement of the action the statute is no bar as against her, and if it is not she is in precisely the same position as to relief as the infant plaintiff. In that aspect the judgment given by A'Beckett, J., is right. HOLROYD, J. I desire to offer no opinion on any of the various points in this case, except one which is sufficient to uphold the judgment given by the learned Judge—that is, that the transaction in 1892 was a repetition of a previous improper dealing with the trust moneys. In the first instance trust money was placed on deposit with a bank without authority, and as if it were an investment and an authorized investment. In 1892 the debt due to the trustee as such by the company with whom the money has been deposited was virtually paid off by the new company, who gave certain deposit receipts of their own, and constituted themselves the debtors of the trustee. That was a new transaction in which the trustee purported to be investing these moneys as if it were an investment and an authorized investment. For that reason I think there was a new breach of trust in 1892, and that being so the statute creating this new limitation of suing does not apply. Solicitors for defendant company, appellant: Davies & Campbell. Solicitors for plaintiffs, respondent: Lamrock, Brown & Hall. A. J. A. KIRBY v. THE VICTORIAN RAILWAYS COMMISSIONER. Practice-Trial by jury-Evidence-Nonsuit-Action for negligence-Onus of proof. Where the circumstances adduced in evidence by the plaintiff in an action for negligence are, in the absence of direct proof of negligence, as consistent with the injury being caused by his own negligence as with it being occasioned by the negligent omission of the defendant, the plaintiff fails to satisfy the onus of proof upon him, and should be nonsuited. Wakelin v. London and S. W. Railway Co. (12 App. Cas. 41) applied. Per HOOD, J. The rule that a railway station must be so lighted that persons lawfully thereupon may be in reasonable safety applies only to such persons, and does not extend to persons outside the premises. APPEAL from the County Court. The facts and arguments may be sufficiently collected from the judgment of Williams, J. The appeal was heard by the Full Court, consisting of Williams, Holroyd, and Hood, JJ. McArthur for the plaintiff appellant. Box and Cussen for the defendant respondent. The following judgments were read :—— Cur. adv. vult. WILLIAMS, J. The plaintiff's daughter, who had a return ticket from Pakenham to Melbourne, was proceeding to Pakenham station in order to return to Melbourne by the night train. The night on which she was killed was an extremely dark one, and she had only been to Pakenham on two or three occasions before. The approach to the station was fenced, but there was no light to indicate or make manifest the approach. A high road led to this approach, and continued on past it down to and crossing the railway line. This high road was also fenced. It crossed the line by what is known as an open crossing, with cattle pits immediately adjacent to either side of the crossing. This crossing, like the approach, was also not lighted, and this crossing was distant from the approach only 33 yards-99 feet. The station was lighted to a certain extent, but anyone going in the direction of the station from the house which the plaintiff's V.L.R., Vol. XXIV. Ꭱ Ꭱ F.C. 1899 February 16, March 3. F.C. 1899 KIRBY V. THE VICTORIAN RAILWAYS Williams, J. daughter on the night in question left would be unable to see these lights, as they would be obscured by the cool storage shed. These station lights, however, threw a strong light on to the roof of the goods shed, which was on the opposite side of the line. The plaintiff's daughter was killed by a train of the defendant's COMMISSIONER. apparently at a point on the line close to the open crossing. She appears to have been caught by an incoming train either in the cattle pit nearer to the station, into which she may have fallen, or at a point immediately beyond it, inasmuch as traces of blood were found commencing at a point two feet from the cattle pit. nearer to the station, continuing to where the body was found. On these facts the plaintiff brought an action against the defendants, but was nonsuited by the Judge of the County Court on the ground that there was no evidence to go to the jury that her daughter's death was occasioned by any act of negligence on the part of the defendants for which they could be held liable. From this decision the plaintiff has appealed, and we have now to decide whether that nonsuit was right or wrong. Counsel for the plaintiff urged that there was another approach to the station-namely, that along the line—within a very short distance of the legitimate approach, and as that other approach was dangerous it became the duty of the defendants to light either the one approach or the other, if the jury came to the conclusion that the approach which was dangerous was so close to the one that was not that on a dark night a person who had a right to go to the station might reasonably mistake the one for the other. This proposition may or may not be correct. Personally I am inclined to think it is. If a station may be approached by either of two underways close together, and one is in a highly dangerous condition, I think it would be the duty of the railway authorities to indicate in some way which approach is safe and which is dangerous. But it is not sufficient for the plaintiff to establish this proposition. To defeat this nonsuit she must also establish that there is evidence fit to be submitted to a jury that the death of her daughter was caused by the negligent act or omission of the defendants. This it appears to me she has failed to do. |