Q. B.]

REG. v. THE TRUSTEES FOR PAVING, &c., GREAT TOWER HILL.

[Q. B.

intended to include this extra-parochial place, and consequently that the powers of the trustees are no longer vested in them, and that this rate is bad.

to the city), in the interpretation clause, defined that the word "parish" should include any place or combination of places mentioned in schedule B. of that Act. Now in schedule B. to that Act we find under the head of "parishes" (that is "places or combination of places"), "Tower, district of." What SHEE, J.-I am of the same opinion. It was did the Legislature mean by "District of the admitted at the beginning by Mr. Maude that the Tower?" The contention is that they must have whole question to be determined in this case was meant by that the ancient parish or place called by the meaning of the words "Tower, district of" in the name of "Precinct of the Old Tower Without." schedule B. of the Metropolis Local Management But then, if they did mean to say that, it seems Act. Now those words, "Tower, district of," have impossible to see why the Legislature should not have been used in preference to the words "Precinct of used that name. Then the area which was adjacent, the Old Tower Without," which is undoubtedly, which was included and hemmed in by that, which is according to the view of Mr. Maude, included in called Great Tower-hill, is not the Tower district "the Tower, district of" for some purpose. There either. It seems to me that, putting a reasonable must have been some meaning in changing the interpretation on the words of the Legislature, the designation "Precinct of the Old Tower Without" only interpretation we can put upon them is, that to "Tower, district of" for the purposes of this Act. the words "Tower, district of," were meant to include Then, it being admitted that the Precinct of the Old those two places lying adjacent to each other, and Tower Without is included in "Tower, district of" in were not intended to be confined to either of these schedule B., we must endeavour to find some intelliplaces. The argument against that notion is this: gible and probable reason for the insertion of the inasmuch as the area called Great Tower-hill was words in the schedule "Tower, district of" instead extra-parochial, there would be difficulties under of the words Precinct of the Old Tower Without. the machinery of the Act if jurisdiction is given Now, we find that this precinct of the Old Tower over that spot, and that there would be difficulty Without is a parish separated from certain parishes in working it because it is extra-parochial, and in the city of London which are not within the there are consequently neither persons rated to the purview of the Metropolis Local Management Act, poor or churchwardens. No doubt there are difficul- and that there is also another district, or place, ties, and it is not very easy at present to say how called Great Tower-hill. It does not belong to the the thing ought to be worked out. I quite concede to parishes of the City of London which it adjoins, and Mr. Maude that it must be taken that the Legislature it is not within the parish (for the purposes of the intended that the debts secured on the old precincts poor-law so called) which bears the name of should not be annihilated, and that it must have "Precinct of the Old Tower Without." What been intended that there should be some mode by possible object could the Legislature have under which the thing could be worked out. The present those eircumstances in using the words "Tower, question is, could it be done by taking it out of the district of" in the schedule B. to the Metropolis district altogether, the power of the trustees being Local Management Act if it were not understood left as before? I think that would be straining the to include in that description as well the precinct words of the Act of Parliament, and that the Legis- of the Old Tower Without, which was a parish prolature did not intend that there should be this place perly so called within the meaning of the poor-laws, out of the scope of the Metropolis Local Manage- and that outlying place called the Great Tower-hill, ment Act working for itself. I think that would be which lies between that and certain parishes which quite contrary to the general object and intention of are not within the purview of the Metropolis that Act. The general intention of the Act was to Local Management Act at all? It seems to me that put the whole metropolis under one general manage- in that state of things we can come to no other conment, and they must have intended to include that. clusion than that the words "Tower, district of " do Then, under sect. 90, it is provided that all duties, include as well the Precinct of the Old Tower powers, and authorities, given to any commissioners Without, which they are admitted to include, and or other bodies having powers under an Act of to which in Mr. Maude's view they are limited, as well Parliament over any place in schedule B. shall cease that parish as the place between it and the parishes to be vested in them, and that all the powers now of the city of London. Then we find that the outvested under any local Act in any such com-lying place called "Great Tower-hill" was managed missioners shall cease to be so vested, and shall, save as herein otherwise provided, become vested in and be performed and exercised by the board of works for such district. Now then comes the question, can the trustees under this local Act exercise any of the powers which by the Act of the Legislature are to be no longer vested in them, but are to be vested in the district board? That is all we have really to decide, and it seems to me to be clear that they cannot, and that consequently this rate is bad. There remains another question behind which may be raised hereafter in some shape or other, that it being pretty clear that it could not have been the intention of the Legislature to do away with these debts in the smaller area there must be some way of enforcing them, and two ways occur to me if the powers vested in the trustees are transferred to the district board, and the Act does not otherwise provide for them. The district board would seem to be able to make a rate under the old Act: if there is another provision made for it, then it may be that they would have to follow that other provision. At present it would be premature to say what the right way of doing it is: all we say is that it seems to us clear that the Tower district was

for the purposes of paving, lighting, watching, cleansing, watering, improving, and keeping in repair, by the trustees under a local Act of 37 Geo. 3, passed in the year 1797, and that these trustees have the power of making rates in a particular way. Mr. Maude certainly does impress us in some parts of his argument very strongly by pointing out that the provisions of the Metropolis Local Management Act as to the constitution of vestries and the election of vestrymen, and of boards of works, are not provisions which are clearly or distinctly applicable, or can easily be made to fit such a case as this; for a place which is extra-parochial, in the first place, special officers called vestrymen are to be elected under the provisions of the Metropolis Local Management Act, and the person who is to initiate the election of these vestrymen is to be a churchwarden of the parish. There is no churchwarden of this place. Then again, the vestryman to be elected, as Mr. Maude has pointed out, must be a person who is assessed to the relief of the poor on a rental of not less than 40%. per annum. Mr. Maude very clearly puts it that that prevents any person residing in or having property in this extraparochial place from being a vestryman under the

Ex.]

WALKER (Administrator, &c.) v. THE MIDLAND RAILWAY COMPANY.

[Ex.

peace, upon complaint by or on behalf of the party | modation for the safety of their passengers arriving aggrieved, may hear and determine such offences, at the said station, and requiring on their arrival and the offender shall, upon conviction thereof there to depart from and out of the same, whereby before them, at the discretion of the justices, either the said Charlotte Walker having been received and be committed to the common gaol or house of cor- carried by defts. as a passenger on the said railway rection, there to be imprisoned with or without hard from Apperley-bridge to the said station at Holbeck, labour for any term not exceeding two months, or and requiring on her arrival at the said station to else shall forfeit and pay such fine as shall appear depart, and being in the act of departing from and to them to be meet, and if such fine as shall be so out of the said station, was struck and thrown down awarded shall not be paid, either immediately after by the said train of carriages and thereby injured, the conviction or within such period as the said and by reason of the said injuries so occasioned to justices shall at the time of the conviction appoint, her as aforesaid, she afterwards and within twelve they may commit the offender to the common gaol, calendar months next before this suit died, and plt. there to be imprisoned, with or without hard labour, as administrator as aforesaid for the benefit of himfor any term not exceeding two months, unless such self the husband, and of J. W. Walker and L. Walker, fine or costs be sooner paid." Now, it is clear that the children of the said C. Walker, according to the the magistrate did not order the deft. to pay any form, &c., claimed 2000l. Plea, not guilty, and issue sum of money, neither can it be said that he comes thereon. within the 44th section, and that he is entitled to a certificate from the magistrate that the case was dismissed, and, moreover, in order to substantiate his plea, and to benefit by the 45th section, he ought to have produced the conviction, which he is unable to do.

Held, making absolute a rule to enter a nonsuit, that there was no evidence for the jury of any neghgence on the part of defts., it not being negligence in them not to have a person stationed on the spot to warn passengers about to cross the line of the approach of a train, of which, if passengers used due care, they might inform themselves.

This was an action brought by the plt., as husband and administrator of the estate of his deceased wife Charlotte Walker, against the defts. the Midland Railway Company, for alleged negligence on their part in causing her death on the 3rd Dec. 1865.

The declaration alleged that defts. were carriers of passengers for hire upon a certain railway, and used a certain station at Holbeck upon the said railway for the use and accommodation of their passengers arriving at the said station, and requiring on their arrival there to depart from and out of the same, and had the management of the said station for the purpose aforesaid, and also of a certain train of carriages then travelling upon the said railway, yet defts. negligently managed the said station and train of carriages, and omitted to light the said station in a proper and sufficient manner for the use and accommodation of their said passengers there, and to provide proper and sufficient accom

At the trial before Keating, J., at the last spring assizes at Leeds, it appeared that the plt. was a journeyman joiner at Leeds, and that his wife, the deceased woman, having gone to a place some few miles distant from her home by an excursion train on the defts.' line of railway, on the 3rd Dec., was returning home on the evening of that day, and had arrived at the Holbeach station, which is a station used for the interchange of traffic between the Midland and other railways, and where it appears to be customary for a number of persons to alight, and which station was the terminus of the deceased's journey. She arrived at the centre platform of the Holbeck station by an up train at about 5.30 p.m., and in order to leave the station she had to cross the down line of rails on a level crossing. As she was crossing the down line a down train coming in from Leeds at the instant knocked her down and killed her on the spot. It appeared from the evidence that the deceased, who was familiar with the station, having often been there as a passenger, stepped on the line without looking to the right or left, and was walking quickly across the line, and that the driver of the train, which was in fact pull

ing up and going not faster than from eight to ten miles an hour, saw her for the first time only when she was about six yards off, and immediately blew his whistle, and he had whistled before in approaching the station. There was a conflict of evidence as to the state of the atmosphere, whether it from the slanting direction taken by the deceased in was or was not a foggy night. It appeared that crossing the line, her opportunity of seeing the approaching train until it was within a very few yards of her was prevented by the position of a urinal which obstructed the line of vision, although from the crossing itself the advancing train could be seen for a distance of nearly 200 yards by any one looking along the line.

The charge of negligence in not sufficiently trial, but it was contended that defts. ought to have lighting the station was not persisted in at the provided a high-level footbridge to enable passengers to cross the line. It was also urged that they should have had a porter or policeman stationed at the spot to inform persons of the approach of trains. It was proved that there were level crossings at almost every station, and that there were only four high-level footbridges on the whole line, and that many millions of passengers had used these level crossings without a single accident. It was also proved that a person walking at the rate of three and a half miles an hour (the rate at which deceased was said to have walked across) would cross the line in two seconds, during which time a train going from eight to ten miles an hour would pass over from ten to twelve yards. It appeared also that a train is visible as it approaches about 191 yards from the spot where the accident happened.

The engine carried the usual signal lamp. Sixty

Ex.]

GRIFFITHS (Administratrix, &c.) v. THE LONDON AND NORTH-WESTERN RAILWAY Co. [Ex. three trains pass along the down line daily, of which | deceased's part, who should have looked right and thirty-three stop at the Holbeck station. left before stepping on the line. He cited, also, Cotton v. Wood, 29 L. J. 333, C. P.; Cornman v. The Eastern Counties Railway Company, 29 L. J. 94 Ex.; 4 H. & N. 781.

At the close of plt.'s case, defts.'counsel contended, on the authority of Stubley v. The London and NorthWestern Railway Company, that there was no case for the jury against the defts.; the plt.'s counsel on the other hand relying on Bilbee v. The London, Brighton, and South Coast Railway Company as showing the defts. to be liable. The learned Judge thought he ought not to keep the case back from the jury, and he accordingly summed up the case, and left it to them to say whether the accident was occasioned by the negligence of the defts. without any contributory negligence on the part of the unfortunate The jury found a verdict for the plt. with 150%. damages, and leave was reserved to defts. to move to enter a nonsuit.

deceased.

Field, Q. C. accordingly, in Easter Term last,

moved for and obtained a rule nisi to set aside the plt.'s verdict, and to enter a nonsuit pursuant to leave, on the ground that there was no evidence of negligence on the part of the defts., or for a new trial on the ground that the verdict was against the evidence, and that the deceased contributed to the accident; and against that rule,

Cur, adv. vult.

June 12.-BRAMWELL, B. now delivered the judgment of the court (Pollock, C. B., Martin, Bramopinion that the rule to enter a nonsuit in this case well, and Channell, BB.) as follows:-We are of should be made absolute. It was an action by a husband against the defts. for damages occasioned by the death of his wife attributable, as he alleged, to the negligence of the defts. The case was this: the deceased woman having arrived by a train at the Holbeck station on the defts.' line of railway, got out in safety and then proceeded along the way, the single line by a level crossing in order to leave which she was well acquainted with, and to cross the station. At the very moment she stepped on had looked, arrived at the same spot, and she was the line, a train, which she could have seen if she cumstances, on the point reserved, we are of opinion knocked down by it and killed. Under these cirthat there was no evidence to go to the jury to show any negligence on the part of the defts.; the supposed negligence being that they ought to have had somebody stationed there to inform her of what she might have informed herself, if she had used due care. I am unwilling to say that of a deceased person, but it is the truth. We think therefore that there was no evidence to go to the jury of any negligence on the part of the defts. For my own part I think, in addition to that, that there

was sufficient evidence that it was her own doing and her own act. As to that matter I speak for

Rule absolute to enter a nonsuit.

Attorneys for plt., Torr, Janeway, and Tagart,
38, Bedford-row, agents for C. Bulmer, Leeds.
Bow-churchyard, agents for Rawson, Best, and
Attorneys for defts., Bell, Brodrick, and Lambert,
Braithwaite, Leeds.

9,

May 26.-Overend, Q. C. and Kemplay, for the plt., now showed cause, and contended that this was a case in which negligence was clearly substantiated against the defts. It was a dangerous and negligent thing that passengers should be obliged to cross a line of rails on which so many trains were daily passing and repassing; and if no high-level bridge was put there, which ought to have been the case, the company were at all events bound to place one or more porters there to warn and caution pas-myself only.. sengers crossing of the advance of coming trains. The cases of Bilbee v. The London, Brighton, and South Coast Railway Company in the C. P. (13 L. T. Rep. N. S. 146; 34 L. J. 182, C. P.; 18 C. B., N. S., 584), and Stapley v. The London, Brighton, and South Coast Railway Company, in the Ex. (13 L. T. Rep. N. S. 406; 4 H. & C. 93; 1 L. R. 21, Ex.; 35 L. J. 7, Ex.), were authorities in plt.'s favour. The danger here, as in those cases, was created by the act of the company; the deceased not having the choice of a convenient way was warranted in crossing. Again, there was no contributory negligence in the deceased. [BRAMWELL, B.-In Stapley's case the open gate might be said to amount to an invitation. Here you say "silence gave consent." Of course there is always a presumption that a train is coming on a railway.] Not, it was submitted, at the particular moment when passengers are in the act of crossing, and that, too, in the absence of any caution from the defts.' servants.. [BRAMWELL, B.--If, instead of being killed, the unfortunate deceased had had her dress torn by contact with the engine, could it not have been said to her, "Why did you not look out?"] There were here no means of getting from the station without danger, and no one to warn her of the danger.

Saturday, June 2.,

GRIFFITHS (Administratrix, &c.) v. THE LONDON
AND NORTH-WESTERN RAILWAY COMPANY.

Railway company-Liability of for accident from
defective hoisting machinery-Right of to carry on
business in their own way.

A railway company have a right to carry on their business on their own premises in such a way as they think fit; and, so far as the conduct of such business is concerned, to use defective machinery, e. g., for hoisting goods on their own premises, merely compensating the owners for any injury done thereby to such goods, and they are not guilty of negligence, or liable in an action for damages, under Lord Campbell's Act, quoad a third party lawfully on their premises who, without invitation by words or conduct on their part so to do, chose to pass under a heavy package of goods which was in the act of being hoisted by a crane, and which slipped from the sling by which it was defectively suspended, and fell upon and killed him whilst so passing under it, there being another way by which he might have gone without passing under the package in question, and the company having no reason to expect that people would pass underneath it.

Declaration:

That before and at the time, &c., defts. were possessed of a certain railway and a certain railway station and platform in Liverpool, and one Thos. Griffiths was lawfully in the said station and upon the said platform, and defts. by their servants were then receiving from a certain lorry or waggon in the said station certain bags of ground madder by means of

Ex.] GRIFFITHS (Administratrix, &c.) . THE LONDON AND NORTH-WESTERN RAILWAY Co. [Ex.

certain machinery and tackle of defts. to wit a certain hoist or crane there, and a certain sling or rope attached or belonging thereto, and defts, so negligently and unskilfully managed the said machinery, tackle, hoist, crane, and sling for the purpose aforesaid, and used so little care and skill in and about the fastening and security therewith and thereto one of the said bags whilst being so removed as aforesaid, and the said machinery, &c., were so defective and improper, and imperfect for the purpose aforesaid, that by means of the premises the said bag of ground madder slipped from the said machinery, &c., and fell upon and struck the said T. Griffiths, then lawfully being in the said station and upon the said platform, whereby the said Thos. Griffiths was wounded and injured, and in consequence of the wounds and injuries received thereby the said T. Griffiths shortly afterwards, and within twelve calendar months, &c., died, and plt. as such administratrix, &c., for benefit of herself the wife, and of Thomas and William, the children of the said T. Griffiths, according to the statute, &c., claims 10002

Pleas:-1. Not guilty. 2. That at the said time when the said bag, &c. fell upon the said deceased he was not lawfully in that part of the station and platform where he was at the said time when, &c.; and upon those pleas issue was joined.

At the trial, before Lush, J. and a special jury, at the last Lancashire Spring Assizes at Liverpool, it appeared that the deceased husband of the plt. was a porter of the name of Griffiths, in the employ of a firm of chemists and druggists at Liverpool, and in the course of his duty on behalf of his employers he took some goods to the Waterloo goods station of the defts.' company at Liverpool for the purpose of their being sent off by the railway into the country. Upon arriving at the usual forwarding department he unloaded his goods from his lorry, as is customary for all carters to do at the station, and then applied to a servant of the company of the name of Newsome for a receipt for the goods which it was Newsome's duty to give him. At the moment that deceased spoke to Newsome the latter was engaged in unloading some sacks of ground madder from another cart by means of a steam power hoist or crane, each bag being suspended from the crane by a sling or noose placed round its centre. Newsome was in charge of the jigger and break that worked the crane, and on being asked by the deceased to sign the receipt, he made fast the check of the jigger, and left the bag of madder which he was in the act of hoisting swinging suspended in the air some five feet above the ground. Newsome having no ink with him, the deceased offered to get him a dip, whereupon Newsome handed him his pen, and the deceased proceeded to go with it to Newsome's hut, a short distance off where the ink was. In doing so he passed over several packages of goods that were lying heaped about the station yard, and under the bag of madder which was hanging suspended in the sling from the hook of the crane, and at the moment that he was so passing under it, the bag of madder, weighing between three and four hundredweight, slipped from the sling, and fell upon and crushed him so seriously that he died within a few minutes after being carried to the hospital.

It was contended at the trial, on the part of the plt., and witnesses were called who stated, that the sling used, being a single loop round the centre of the package, which might be safe enough for a soft or limp package like a bag of flour, the ends of which would hang down on each side, and so prevent the bags slipping through the loop, was not a safe or proper one for a hard and stiff package like the bag in question, and that it should either have been a "thimble sling," which tightly grips and ties the package in the middle, or there should have been two loops or slings, one at each end of the package, so that it would have rested steadily, and not have slipped through the sling. But, on the other hand, other witnesses, called by the plt., who were servants of the company, stated that the sling in question was the usual and proper one, and had been used for

more than twenty years for similar packages without an accident.

It was also contended by the defts. that the plt. contributed to the accident by his own negligence in going under the package, there being, as it was proved, another way to the hut or office in question free from obstruction of packages and clear of the crane and sling, by which he might and ought to have gone.

The learned judge left to the jury to say first, whether the sling was a proper sling, and whether the company used it in the way in which they ought to have used it; and secondly, whether the deceased was himself contributory to the accident by going under the sling in the way in which he did.

The jury found a verdict for the plt. with 300%. damages-2001. for the widow, and 501. each for the deceased's two children, and the learned judge reserved leave to the deft. to move to enter a nonsuit.

E. James, Q. C. accordingly, in Easter Term last, obtained a rule on the part of the defts. to set aside the plt.'s verdict and enter a nonsuit on the ground that there was no evidence for the jury, or for a new trial on the ground that the verdict was against evidence; against which

June 2.-Brett, Q. C., and Quain, for plt., now showed cause.-The negligence here was twofold. The company knew persons must apply to Newsome, their signing clerk, for receipts, and yet they set him to superintend working the crane, and then he, instead of lowering the bag to the ground, left it swinging in the air. [MARTIN, B.-Čan it be said to be negligence that he stopped to attend to the deceased who spoke to him? The accident was the natural result of his speaking to Newsome.] It was not the stopping, but leaving the bag suspended instead of lowering it to the ground, that was negligent. It was negligence also in defts. to use this sling, which was proved to be an unsafe one for a hard package, which required either a thimble sling, which would have gripped and locked it tightly in the middle, or a sling with double loops at each end of the package. If there be any evidence of negligence in defts.' servants this rule must be discharged, for the question of contributory negligence was for the jury. [MARTIN, B. refers to Bolch v. Smith in the Ex., 6 L. T. Rep. N. S. 158; 31 L. J. 201, Ex.; 7 H. & N. 736. BRAMWELL, B.-Negligence is a relative term, and the difficulty I feel in cases of this class is whether a sling like this can be called a negligent sling with regard to a man who walks under it having no right to walk there. Was he invited to go that way? Would the defts., if they did again wilfully, and with knowledge of what might happen, that which they did as you say carelessly, not knowing it, be liable for an accident?] It was contended that they would be. The rule was that persons must so use their property as not to endanger others who were not themselves negligent, and this was clearly an unsafe sling. As to contributory negligence, the deceased had a right to assume defts. would use a safe sling and use it in the usual way, which it was proved was not the case here. Moreover, their servants permitted him to go under the sling without a word of caution or prohibition, which amounted to an invitation. [MARTIN, B.— Can crawling over heaps of packages and under cranes be a proper way? Using common sense he must have known that round behind the hut was the proper way.] There was evidence of negligence in using a dangerous sling, and the jury. were jus tified in finding no contributory negligence plt. in his passing under the crane. A nonsuit at an events could not be entered here. They cited also Cotton v. Wood, 29 L. J. 333, C. P. [MARTIN, B.

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