Murray v. and Tor rance. Dec. 18. 1863. and the question in these circumstances is, whether, No. 94. having entered on the third year's service, he was under M'Gilchrist an obligation to continue. The question is one of novelty; but after giving it my best consideration, I High Court. am satisfied that he is not bound. I think that after the expiry of the year he was no longer working under Suspension. a definite time engagement. Tacit relocation is plainly inapplicable to such a case, because each year's contract was a different contract from the preceding one, in respect there was a yearly increase of wages. Having served the company for one year at one wage, he plainly could not serve the company for another year under the same contract if he received a different wage. If we give effect to the respondents' plea, it comes to this, that the original contract was a valid contract with a break at the end of every year, of which the parties might avail themselves a proposition to which I cannot assent. I am therefore of opinion that the note of suspension should be passed. LORD COWAN concurred. LORD JERVISWOODE also concurred, expressly reserving his opinion as to what the result would be if the question had arisen during the first year of the service. Looking to the peculiar circumstances that the contract was a verbal one for five years, and that there was a yearly change in the rate of wages, he had some doubt whether it would be good even for one year. Injustice might be done by separating the contract into parts, and it was a question, on which he did not pronounce, whether without writing the workman was bound at all. The conviction was suspended, with expenses. W. S. STUART, S.S.C.-JOHN LEISHMAN, W.S.-Agents. No. 95. William Dudley. High Court. Feb. 15. WILLIAM DUDLEY.-Fraser-Mair. CULPABLE HOMICIDE-CULPABLE VIOLATION AND NEGLECT OF DUTYINDICTMENT-RELEVANCY-AMENDMENT OF LIBEL.-Objection to the relevancy of an indictment charging an engine-driver with culpable homicide, or culpable violation and neglect of duty, in consequence of which a collision took place and several persons were injured and one killed,—that certain words occurring in the minor proposition, where the cause of the accident was set forth, were not covered either by the major proposition or by previous allegations in the minor, sustained. Amendment of the libel, by striking out the irrelevant words, not being consented to by the panel's counsel, the diet deserted pro loco et tempore. WILLIAM DUDLEY, an engine-driver, was indicted and accused THAT ALBEIT, by the laws of this and of every other well-governed 1864. realm, culpable homicide; as also culpable violation of duty; as also Culpable culpable neglect of duty, by an engine-driver or other person em&c. ployed upon a railway, whereby any of the lieges are killed or Homicide injured, are crimes of an heinous nature, and severely punishable: YET TRUE IT IS AND OF VERITY, that you the said William Dudley are guilty of all and each or one or more of said crimes, actor, or art and part: IN SO FAR As you the said William Dudley having at the time of the collision hereinafter libelled, been employed by John Waddell, a contractor, now or lately residing at or near Bathgate, in the county of Linlithgow, by himself, or others acting for his behoof, in the capacity of engine-driver, to take charge of an engine and trains of railway waggons or trucks upon the Leadburn, Linton, and Dolphinton line or railway, or upon a line or railway, called by some other or similar name to the prosecutor unknown, now or lately in the course of being formed, connected at or near Leadburn railway station, in the county of Edinburgh with the Peebles No. 95. William Dudley. 1864. Culpable Homicide, &c. railway between Edinburgh and Peebles, now leased to or wrought by the North British Railway Company; and it being the duty of you the said William Dudley, in your capacity of engine-driver foresaid, High Court when the engine under your charge was to be employed in drawing Feb. 15. waggons or trucks, not to proceed without the assistance of a brakesman or person to take charge of, and apply the brakes the said upon waggons; and it being further your duty as engine-driver foresaid, when the engine under your charge was employed in drawing waggons, or trucks, on no account to leave the engine without intrusting it to the charge of some competent person, and to take care that the engine should not become uncoupled from or disconnected with the waggons or trucks, without seeing that the trucks were in a position of safety, and that there was no danger of their escaping from the control of you or of the engine under your charge, and to take all necessary means and precautions to prevent danger and injury to the lieges: YET NEVERTHELESS you, the said William Dudley, at a specified time and place, having been in charge of your engine, and there being, at or near the said Leadburn Station, and on the said Leadburn, Linton, and Dolphinton railway, five or thereby trucks or waggons, requiring to be taken along the said Leadburn, Linton, and Dolphinton railway, you, in culpable violation and neglect of your duty as engine-driver foresaid, did attach your engine to the said trucks and proceed therewith along the said Leadburn, Linton, and Dolphinton railway, drawing the said trucks by means of your said engine, without being accompanied by any brakesman, or qualified person to act as brakesman, on the said trucks or waggons, and this although you well knew that John M'Namara, now or lately residing at or near Whim, in the county of Peebles, a duly qualified brakesman had been engaged to act as brakesman under the directions and orders of you the said William Dudley FURTHER, you having proceeded a certain length with the said engine and trucks along the said Leadburn, Linton, and Dolphinton railway, up an incline on the said railway in the direction of Cowdenburn, you the said William Dudley, in culpable violation and neglect of your duty as engine-driver foresaid, did, at or near the top of said incline on said railway, leave your said engine without entrusting it to the charge of any qualified person, and you did, then and there, detach or uncouple from the said engine the said five or thereby trucks or waggons without taking the necessary precautions to secure that the said trucks should not run down the said incline and escape from the control of you and your said engine; and thereupon, and in consequence of your culpable violation and neglect of duty foresaid, and in consequence of your not taking the necessary means and precantions to prevent danger and injury to the lieges, the said five or thereby railway trucks or waggons being disengaged from the engine in the said incline, and no qualified person being in charge of the engine, the said trucks or waggons, or some of them, ran down the No. 95. 1864. said incline on the Leadburn, Linton, and Dolphinton railway, and did Dudley. pass from the said railway to and along the line of railway from High Court Edinburgh to Peebles, and did at a part of said last-mentioned railway Feb. 15. between the said Leadburn railway station and the railway station at or near Penicuik, both in the county of Edinburgh, ran against and come in collision with, a fast passenger or other train in the employment of the North British Railway Company, then travelling along said Peebles railway; by which collision, and in consequence of your culpable violation and neglect of duty foresaid, and of your failure to use the necessary means to prevent danger and injury to the lieges, one person was killed, and several were severely injured. Culpable Homic.de, &c. FRASER and MAIR, for the panel, objected to the relevancy of the indictment-(1.) In the minor proposition where the duty of the panel was alleged, the words 'and 'to take all necessary means and precautions to prevent danger and injury to the lieges,' were either unnecessary or not sufficiently explicit. (2.) Where the accident and consequent injuries were attributed to failure on the part of the panel to take the necessary means ' and precautions to prevent danger and injury to the lieges,' these words were not covered either by the major proposition or by the previous allegations of duty in the minor, and further did not disclose what the prosecutor intended to prove. GIFFORD and MONCRIEFF, for the prosecution, answered -At common law there was an obligation upon the officials employed by a railway company to take all precautions in their power for the safety of the public, and the failure to do so constituted a relevant matter of criminal charge. A libel similar to that now objected to had been sustained as relevant in the case of Thomas Rowbotham and others, High Court, March 19, 1855, Irvine, vol. ii., p. 89. The opinion of the Court was delivered by The LORD JUSTICE-CLERK.-In judging of the objections taken to the relevancy of this indictment, it is necessary to observe that the charge in the major proposition of the indictment is, in the first place, culpable homicide, and, secondly, culpable violation of duty. I No. 95. William Feb. 15. Homicide, take these two together, because, although stated separately in the major, they are dealt with as one charge Dudley. in the minor proposition. The charge, therefore, in the High Court. major is twofold-culpable homicide and culpable viola- 1864. tion and neglect of duty. Now the minor proposition Culpable proceeds upon a plan that is usual in indictments of this &c. kind, first of all stating what was the duty incumbent on the panel. It states, in the first place, that it was his duty not to proceed with his engine and trucks without the assistance of a brakesman; in the second place, that it was his duty on no account to leave his engine without entrusting it to the charge of some competent person; in the third place, that it was his duty to take care that the engine should not become uncoupled from or disconnected with the waggons or trucks, without seeing that the trucks were in a position of safety, and that there was no danger of their escaping from the control of the prisoner, or of the engine under his charge. Then follow these words:- and to take all necessary 'means and precautions to prevent danger and injury to the lieges.' I do not know with what view these words were added. Indeed, they seem to me to be so unimportant that I am very much inclined to disregard their presence altogether, and hold them to be mere verbiage. The difficulty, therefore, such as it is, does not lie in that part of the indictment. I take the allegation of duty here to be threefold, as I have already explained. In the next part of the minor proposition, there is a good allegation of a breach of that duty in each of these particulars. It is unnecessary to go over these particulars. Down to that point the Court are of opinion that the indictment is quite relevant. But what follows is just as necessary and important a part of the indictment as that which I have already spoken of. It goes on to state in what way the accident was caused upon the railway, which resulted in the death of one, and the injury of several persons; and the way in which that is libelled is in these words :- - And |