8 & 9 VICT. c. 20.

Injury caused by some extraordinary oc

currence.

However, where a train of the defendants, whilst stationary on their railway, was run into by another train, the train in fault being the moving and not the stationary one; several railway companies having running powers over the part of the defendants' line on which the collision occurred, and no evidence being given as to whether the moving train belonged to or was under the control of the defendants, it was held that, in the absence of evidence to the contrary, it must be presumed that the train which caused the collision belonged to or was under the control of the defendants: (Ayles v. South-Eastern Railway Co., L. R. 3 Ex. 146.)

If the injury to the passenger result from some extraordinary occurrence, the company will not be held liable. Thus, where the embankment of a railway ran through a country subject to floods, and had five years previously been constructed of sandy soil, with insufficient culverts to carry off water; and an extraordinary fall of rain had caused a flood, which had washed away the soil or part of the embankment, leaving the "sleepers" unsupported, so that the earth gave way, and the train, an express one, passing over it at night at the ordinary express rate, went off the line; there being no evidence that the water was seen on the line, or that there had been anything to indicate danger, and no engineer or skilled witness having been called to prove that the nature of the soil of the embankment was such that water would wash it away in ordinary floods, it was held that there was no evidence of negligence, or so little that the verdict (which had been found for the plaintiff) was against the weight of evidence: (Withers v. North Kent Railway Co., 27 L. J. (Ex.) 417.)

So in two similar cases, decided by the Privy Council on appeal from Canada, (Great Western Railway Co. of Canada v. Fawcett ; same company v. Braid, 9 Jur. N. S. 339; 1 Moore, P. C. N. S. 101,) where the injuries to passengers resulted from the giving way of a portion of the company's railway, caused by a storm of unusual violence, Lord Chelmsford, in delivering the judgment of the Privy Council, said: "The defence in both cases was substantially the same, being founded upon proof of the proper construction of the railway, of the daily inspection of the line, and of the violence of the storm of rain which carried away the embankment. As far as we can collect from the learned judge's note of his charge to the jury, he does not appear, in Fawcett's case, to have adverted to the company's defence arising from the extraordinary and unforeseen state of the weather immediately before the accident; nor, in Braid's case, to have mentioned it otherwise than in an incidental manner. In neither case does he appear to have explained to the jury the effect which would be produced upon the question of negligence, by satisfactory proof that the storm which destroyed the embankment was of such an extraordinary description that no experience could have anticipated its occurrence. Their Lordships think that the jury should have had their minds distinctly and pointedly directed to this question, and that without some definite instruction upon the subject, they were likely to have omitted it from their consideration." In these cases, however, their Lordships refused to order a new trial, as they were of opinion that there was

Roadworthiness of Carriages-Means of Alighting. 403

sufficient evidence of negligence to support the verdicts which had 8 & 9 Vior. c. 20. been found in favour of the respondents.

In Withers v. North Kent Railway Co. (ubi supra), Bramwell, B., says "Negligence must be shown by the plaintiff. It is not enough to show that an accident arose from certain extrinsic or external causes; where is the evidence of negligence? . . . So far from there being any evidence to show that there was negligence, there was evidence to negative the negligence imputed. The very existence of the line for five years, notwithstanding that the district was subject to floods, tended to negative the only negligence that was set up."

In the cases before the Privy Council, cited above, Lord Chelmsford, after referring to these remarks of Bramwell, B., and pointing out the difficulty of reconciling them with the language of the same learned judge in Ruck v. Williams, 27 L. J. (Ex.) 357, says-" Their Lordships, without attempting to lay down any general rule upon the subject, which would probably be found to be impracticable, think it sufficient for the purpose of their judgment, in these cases, to say that the railway company ought to have constructed their works in such a manner as to be capable of resisting all the violence of weather which in the climate of Canada might be expected, though perhaps rarely, to occur. Now the whole of the evidence, fairly considered, shows nothing beyond this in the character and degree of the storm which destroyed the embankment."

If everything that reasonable care and skill can do to ensure the Roadworthiness safety of passengers has been done by the company, they will not of carriages.

be held responsible for injuries caused by such a defect in their carriages, as could neither be guarded against in the process of construction, nor discovered by subsequent examination: (Redhead v. Midland Railway Co., L. R. 2 Q. B. 412. Dissentiente Blackburn, J.) As the law at present stands, the obligation on railway companies to provide vehicles roadworthy at the commencement of the journey, is not an absolute one; and provided they have been guilty of no negligence, they will not be held liable for injuries caused by a latent defect in the construction of their carriages: (Ibid.) The case, however, in which a majority of the Court of Queen's Bench so decided, is now pending before a Court of Appeal. In the judgments in Redhead v. Midland Railway Co., most of the earlier cases on the subject of the liability of carriers of passengers will be found referred to.

Where, on the arrival of a train at a railway station, some of the Means of passengers had to alight on the line beyond the platform, there not alighting. being room for all the carriages to be drawn up to the platform, and one passenger, a lady, being desired by the porter to alight at a spot a little below the platform, in alighting jumped to the ground, without availing herself of the second of the two steps, and sustained personal injury, it was held that there was evidence to warrant the finding of the jury that the company were guilty of negligence in not providing reasonable means of alighting: (Fry v. London, Brighton, and South Coast Railway Co., 18 C. B. N. S. 225; 11 L. T. N. S. 606; 13 W. R. 293.)

But if under similar circumstances a passenger alights without

8 & 9 VICT. c. 20. being invited to do so by any of the company's officers, and in so doing sustains injury, the company will not be responsible: (Siner v. Great Western Railway Co., L. R. 3 Exch. 150.)

Bridge negligently constructed.

Injured person travelling free.

Where a railway company, for the more convenient access for passengers between the two platforms of a station, erected across the line a wooden bridge, which the jury found to be dangerous, it was held that the company were liable for the death of a passenger, through the faulty construction of this bridge, although there was a safer one about a hundred yards farther round, which the deceased might have used: (Longmore v. Great Western Railway Co., 19 C. B. N. S. 183; see also Nicholson v. Lancashire and Yorkshire Railway Co., 3 H. & C. 534; 34 L. J. (Exch.) 84; 12 L. T. N. S. 391.)

Where a plaintiff fell upon a staircase of a railway company, which had a wall on each side, and the only allegations of negligence were that there were no handrails, and that the stairs, owing to their being nosed with brass, were slippery, it was held that there was no evidence of negligence to be laid before the jury: (Crafter v. Metropolitan Railway Co., L. R. 1 C. P. 300; 35 L. J. (C. P.) 132; 12 Jur. N. S. 272; 14 W. R. 334.)

Where a passenger was injured by the fall of an iron girder, through the negligence of the workmen employed by a contractor in placing it across the retaining walls of the railway; evidence that the work in question was extremely dangerous; that it was the practice when such work was being done across railways, for the company to place a man to signal to the workpeople the approach of a train, and that this precaution was not adopted, was held by the Court of Common Pleas sufficient, but by the Court of Exchequer Chamber (on appeal) not sufficient to warrant the jury in finding that the defendants were guilty of negligence: (Daniel v. Metropolitan Railway Co., L. R. 3 C. P. 216, 591.)

Where a railway porter in closing the door of a compartment, so as to touch a passenger who had just got inside, crushed the fingers of a child, (who was just seating himself,) between the hinges, it was held by the Court of Exchequer, (dissentiente Kelly, C. B.,) that there was evidence of negligence to support a finding of the jury in favour of the plaintiff: (Coleman v. South-Eastern Railway Co., 4 H. & C. 699; 12 Jur. N. S. 944; and see Fordham v. London, Brighton, and South Coast Railway Co., L. R. 3 C. P. 368.)

The fact that the person injured was at the time travelling free as one of a staff of newspaper reporters, does not exonerate the com- · pany from liability to compensate him for the injuries sustained : (Great Northern Railway Co. v. Harrison, 10 Exch. 379.) In this case the name of a reporter other than the one injured, belonging to the same newspaper was written upon the ticket, which purported on the face of it not to be transferable, and contained also on it a memorandum to the effect that any party other than the person named in it, using the pass, would be liable to the penalty which a passenger incurs by travelling without having paid his fare, or that he would be liable to pay the fare; and the question arose, whether under these circumstances, the person injured could be said to have been "lawfully" in the railway carriage at the time of the injury. The Court held that he was "lawfully" in the carriage at the time; it appearing that he had shown the ticket to the porter whose busi

Injuries to Passengers-Death caused.

405

ness it was to examine the tickets, and who said it was all right, 8 & 9 Vier. c. 20. that he had been placed in the carriage by that porter, to whom he was personally known, and that the plaintiff, as well as other reporters known to the company's servants, had on several previous occasions travelled with similar tickets, not bearing the names on them of those who used them: (Ibid.)

without ticket.

Where a mother carried in her arms a child two months over the Child over three age at which children are carried free of charge, without taking a years travelling ticket for the child, not being asked at the time the age of her child, and not intending to defraud the company, it was held that the child was entitled to recover against the company for injury sus tained from a collision caused by the negligence of the company's servants: (Austin v. Great Western Railway Co., L. R. 2 Q. B. 442 ; 36 L. J. (Q. B.) 201; 15 W. R. 863; 16 L. T. N. S. 320.)

Where the train by which a person was travelling when injured Excursion train had been hired from the railway company by a benefit society, for an hired from the excursion, the tickets for which were sold and distributed by the company. treasurer of the society, from whom the plaintiff purchased one, it was held that there was evidence for the jury that the plaintiff was a passenger to be carried by the defendants: (Skinner v. London, Brighton, and South Coast Railway Co., 5 Exch. 787.)

juries received.

Before the statute, 9 & 10 Vict. c. 93, (Lord Campbell's Act,) Where death is if the person injured died from the effects of the injuries sustained, caused by inno action could be maintained, the rule of law being actio personalis moritur cum persona.

S. 1 of that act provides "that whensoever the death of a person 9 & 10 Vict. c. shall be caused by wrongful act, neglect, or default, and the act, 9, s. 1. neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony."

whom action is

S. 2 enacts "that every such action shall be for the benefit of the 8. 2. For whose wife, husband, parent, and child of the person whose death shall have benefit, and by been so caused, and shall be brought by and in the name of the to be brought. executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct."

By s. 2 of 27 & 28 Vict. c. 95, the money paid into Court may be paid in one sum, without regard to its division into shares; and if it be not accepted and the jury think it sufficient, the defendant is to be entitled to the verdict on that issue.

Only one action to lie. Time of commencement.

S. 3 provides "that not more than one action shall lie for and in 8. 3. respect of the same subject-matter of complaint, and that every such action shall be commenced within twelve calendar months after the death of such deceased person."

8 & 9 VICT. c. 20. Where no action

S. 1 of 27 & 28 Vict. c. 95 enacts as follows: "If and so often as it shall happen at any time or times hereafter, in any of the cases brought within intended and provided for by the said act, [9 & 10 Vict. c. 93,] that there shall be an executor or administrator of the person deceased, may be brought or that there being such executor or administrator, no such action by persons bene- as in the said act mentioned shall, within six calendar months after ficially interested the death of such deceased person as therein mentioned, have been

six months by executor, action

in result of

action.

Illegitimate child.

Contributory negligence.

On the part of an infant.

Where person has accepted

his lifetime.

brought by and in the name of his or her executor or administrator, then and in every such case such action may be brought by and in the name or names of all or any of the persons (if more than one) for whose benefit such action would have been, if it had been brought by and in the name of such executor or administrator; and every action so to be brought shall be for the benefit of the same person or persons, and shall be subject to the same regulations and procedure, as nearly as may be, as if it were brought by and in the name of such executor or administrator."

As to the particulars to be delivered, along with the declaration, and the interpretation of the terms in the act, see ss. 4 and 5 of the act (9 & 10 Vict. c. 93) in the Appendix, post.

An action cannot be maintained under this statute on behalf of an illegitimate child of the deceased, a bastard not being a "child" within the meaning of s. 2: (Dickinson v. North-Eastern Railway Co., 2 H. & C. 735; 33 L. J. (Ex.) 91.)

The Legislature intended by this statute to give an action to the representative of a person killed by negligence only when, had he survived, he himself, at the common law, could have maintained an action against the person guilty of the alleged negligence: (Per Lord Campbell, Senior v. Ward, 28 L. J. (Q. B.) 139; 1 E. & E. 385.) Therefore if it be shown at the trial, that the deceased by his own negligence or carelessness contributed to the accident which caused his death, the defendant would be entitled to a verdict: (Tucker v. Chaplin, 2 Car. & K. 730. See further, Walton v. London, Brighton, and South Coast Railway Co., 14 W. R. 424; 14 L. T. N. S. 253; Coleman v. South-Eastern Railway Co., 12 Jur. N. S. 944; 4 H. & C. 699; Skelton v. London and North-Western Railway Co., L. R. 2 C. P. 631; 36 L. J. (C. P.) 249; 16 L. T. N. S. 563; 15 W. R. 925; Paddock v. North-Eastern Railway Co., 16 L. T. N. S. 639.)

And contributory negligence on the part of an infant has the same effect in disentitling him to maintain an action as in the case of an adult: (Abbott v. Macfie, 2 H. & C. 744; 33 L. J. (Ex.) 177. Cf. Coleman v. South-Eastern Railway Co., 4 H. & C. 699; 12 Jur. N. S. 944.)

If the person injured has in his lifetime accepted a sum of money in full satisfaction and discharge of all the claims and causes of satisfaction in action he had against the company, his executor cannot maintain an action after his death in respect of the injury done to the widow and children of the deceased: (Read v. Great Eastern Railway Co., L. R. 3 Q. B. 555; 18 L. T. N. S. 82; 16 W. R. 1040.)

What is sufficient damage to sustain action.

The loss of a reasonable probability of pecuniary benefit from the continuance of the life of the deceased is a sufficient damage to sustain an action under this statute: (Pym v. Great Northern Railway Co., 4 B. & S. 396; 32 L. J. (Q. B.) 377. See also Dalton v. South-Eastern Railway Co., 4 C. B. N. S. 296; 27 L. J. (C. P.) 227 ;