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CASES ARGUED AND DETERMINED

IN THE

Court of Common Pleas,

AND IN THE

Exchequer Chamber and House of Lords

ON ERROR AND APPEAL IN CASES IN THE COURT OF COMMON PLEAS.

TRINITY TERM, 35 VICTORIÆ.

[IN THE EXCHEQUER CHAMBER.] (Appeal from the Court of Common Pleas.)

1872. Feb, 10. May 23. Negligence-Railway Company-Accident to Passenger-Evidence to go to Jury.

COCKLE v. THE SOUTH EASTERN
RAILWAY CO.

An invitation to railway passengers to alight on the stopping of a train without any warning of danger to a passenger, who is so circumstanced as not to be able to alight without danger, such danger not being visible or apparent, amounts to negligence on the part of the railway company; and the bringing up a train to a final stand-still for the purpose of the passengers alighting amounts to an invitation to alight, at all events after such a time has elapsed that the passenger may reasonably infer that it is intended he should get out if he proposes to alight at the particular station.

This was an appeal from the Court of Common Pleas which, in an action by a railway passenger for injuries received in alighting from a train, had been equally divided (See the case 39 Law J. Rep. (N.S.) C.P. 226), as to whether there was evidence for the jury in support of the

action.

The facts which the Court considered material, and on which it founded its

judgment, are fully stated in the judgment, and it therefore becomes unnecessary to set out the case stated on appeal.

O'Malley (F. M. White with him), for the appellants, the railway company, contended that Bridges v. The North London Railway Company (1) was in point; while

Gibbons (Macrae Moir with him), for the respondent, contended it was distinguishable.

The following cases were also referred to, Ryder v. Wombwell (2); Harrold v. The Great Western Railway Company (3); Siner v. The Great Western Railway Company (4); Plant v. The Metropolitan Railway Company (5); and Praeger v. The Bristol and Exeter Railway Company (6).

Cur. adv. vult.

The judgment of the Court (7) was (on May 23) delivered by

COCKBURN, C.J.-This was an appeal to the Court by the defendants under the provisions of the Common Law Procedure Act, 1854, against the decision of the Court of Common Pleas in discharging a rule obtained by the defendants upon a (1) 40 Law J. Rep. (N.s.) Q.B. 188. (2) 38 Law J. Rep. (N.s.) Exch. 8. (3) 14 Law Times, N.S. 440.

(4) 38 Law J. Rep. (N.S.) Exch. 67. (5) 21 Law Times, N.S. 836.

(6) 24 Law Times, N.S. 105.

(7) Cockburn, C.J., Blackburn, J., Mellor, J., Pigott, B., and Cleasby, B.

point reserved at the trial as to whether there was any evidence for the jury in support of the plaintiff's claim.

The Court having been divided in opinion, the rule nisi had dropped.

The facts may be shortly stated.

The defendants are carriers of passengers from the Spa Road Station to Deptford Station, on the line of railway between London and Greenwich. The plaintiff, who lived at Deptford, on March 20, 1869, took a ticket from the Spa Road Station to the Deptford Station, and travelled on the journey in a train from the Spa Road Station, which was due at Deptford about midnight. The carriage in which she travelled was a third class carriage, and was the last carriage in the train. The platform at Deptford was of sufficient length for the whole train to have been drawn up alongside of it, but in addition to the part at which the passengers could alight, it extended some distance, gradually receding from the rails. The train in question drew up with the body of the train alongside the platform; but the last carriage, in which the plaintiff rode, was opposite the receding part of it at which the passengers could not alight, and was about four feet from it. The train did not usually draw up at this spot nor could the passengers alight there with safety. The part of the platform at which the train would in the ordinary course have stopped, was well lighted with gas lamps, but the lights towards the place where the accident happened had been put out, because at that part the trains did not usually stop or the passengers alight. There was a lamppost opposite the point where the plaintiff's carriage stopped, the lamp on which was not lighted and the place was dark. Just before the train stopped, a woman who was in the same carriage with the plaintiff rose for the purpose of getting out, but was told by the plaintiff to wait until the train had stopped. When the train had stopped, the plaintiff waited for the woman to get out, but as she did not do so opened the door and stepped out. On doing so she fell in the space between the carriage and the platform, a space wide enough for three people to stand

abreast, and was injured by the fall. There was no evidence of any invitation to alight having been given by any of the defendants' servants. But it is clear that the train had been brought to a final stand-still, as it was not again set in motion until it started on its onward journey. No warning appears to have been given to the persons in the carriage in which the plaintiff was, not to alight, until the plaintiff had been seen to fall, when, on the woman before referred to attempting to follow her, a cry of "hold hard was heard.

The question is, whether these facts afford evidence to go to the jury of negli gence on the part of the company's servants. We are of opinion that they do.

It is difficult to reconcile all the cases on this subject, each must of course very much turn on its own particular facts; but there is a recent case decided in this Court which is analogous to the case now before us, and the principle of which appears to us applicable to it. The case to which we refer, Praeger v. The Bristol and Exeter Railway Company (6), though an important one, has not found its way into the regular reports. It is, however, to be found in the 24th volume of the Law Times Reports, N.S. p. 105, where it is very fully and ably reported. In that case a train, in which the plaintiff was a passenger, arrived at a terminus, and was stopped fifteen or twenty feet short of the fixed buffers, placed at the extreme limit to which it might have gone. The platform of the station, at the end which was first reached by the train, instead of having its edge parallel with the line of rails used by the arriving trains, was bevelled off into a curve so as to allow space for a siding which there joined that line of rails. The plaintiff sat in the last compartment of the last carriage, which was drawn up opposite the curved part of the platform, so that a space of eighteen inches or two feet was left between them. A guard opened the door but said nothing. It was a dark evening and the station was dimly lighted. The plaintiff stepped out expecting to alight on the platform, and fell between the carriage and the platform, thereby sustaining injuries in respect of which he

brought his action against the company. Upon these facts in the Court of Exchequer, Kelly, C.B., and Pigott, B., Martin, B., dissentiente, held that there was no evidence of negligence to go to the jury. But the Court of Exchequer Chamber, consisting of seven judges, were unanimously of opinion that there was evidence of negligence and reversed the decision.

As the case in question has not been more generally reported it may be desirable to repeat the judgments pronounced on the occasion in question.

Cockburn, C.J., said as follows: "I adopt most readily the formula which has been suggested as applicable to these cases, namely, that the company are bound to use reasonable care in providing accommodation for passengers, and that the passengers also are bound to use reasonable care in availing themselves of the accommodation provided for them. Therefore I agree that a passenger is bound to use reasonable care in alighting on the platform, or elsewhere, where it becomes necessary for him to alight; and if this case had been referred to us on the ground of want of reasonable care in the plaintiff, it would have been an answer to say that he had not used it. The question is whether there was a want of reasonable care on the part of the company, and I think there was not only evidence but abundant evidence of this. It appears that the construction of the railway and platform is such that a train coming to the station has to pass by a curve of the platform, and that if the carriage is stopped alongside a certain portion of the platform a considerable space is left between them; and if there were three or four carriages, probably only those near the engine could be brought up flush with the platform. It has been said that it is not always possible to bring up carriages to the platform at stations, and one's own experience tells us that this is true. The train may sometimes stop short of the platform or shoot beyond it, and the passengers may in consequence have to alight elsewhere than on the platform. Still the purpose always is to bring all the carriages, if possible, to a level with the platform, and therefore a railway traveller is entitled to expect that,

when he steps out, he will step on to the platform. But I agree that if it be daylight-a man being bound to use his eyesight-if the passenger sees that the carriage is not in its ordinary position in reference to the platform, he must not complain if, there being no actual danger, he has to use a little more care than usual in getting out. If the position be such that there is some extraordinary difficulty or danger he must consider what he will do. He may call to the servants of the company to bring the carriage into its proper position, but there may be circumstances in which it is impossible to make such an application, or the application may be refused, or he may have no opportunity of making it. It is possible that from urgent natural necessity he may be obliged to alight. Under such circumstances as these I am far from saying that he might not have a right of action if he suffered injury while so alighting. But these considerations are not involved in the present case. The state of things here was that, whereas the carriage in which the plaintiff was would have been brought up to the platform if the train had moved further, the plaintiff got out believing he was going to step on the platform. Instead of that he fell between the carriage and the platform. He got out on the invitation of the guard who opened the door, which implied an invitation to alight, and I think also to alight with safety. Under such circumstances a person would be justified in expecting to step on to the platform; and it was incumbent on the guard, if he intended passengers to get out, to warn them of the position of the platform. He gave no such warning, and the omission seems to me to amount to negligence, which is the whole question."

Willes, J., Keating, J., and Brett, J., were of the same opinion.

Mellor, J., said "There was not sufficient light at the station to enable a person in the situation of the plaintiff to alight without exercising an unusual degree of care."

Montague Smith, J., said -"Whilst adhering to the case of Siner v. The Great Western Railway Company (4), I consider that case distinguishable from the present

on two grounds; first, because here there was a clear invitation to alight by the guard opening the door; and secondly, because here the danger to be incurred was not apparent. The negligence of the company consisted in drawing up the train as it was drawn up, and inviting passengers to alight without giving them any warning of the state of the platform, there being also evidence of a want of sufficient light."

Lush, J., said "I consider that the company did not do what they might have done under the circumstances. The train was drawn up so that part of it was short of the proper platform, and an unusual space was left between the compartment in which the plaintiff travelled and the platform. The guard opened the door without giving any caution. Looking also at the time of the day and the state of the light, it seems to me that it was for the jury to say whether the injury to the plaintiff was caused by the company's negligence or by other causes."

The foregoing case appears to us in point to the present, as establishing that an invitation to passengers to alight on the stopping of a train without any warning of danger to a passenger who is so circumstanced as not to be able to alight without danger-such danger not being visible and apparent-amounts to negligence.

It is true that in the case before us there was not an invitation to alight which is implied in the opening of the carriage door, as occurred in the case of Praeger v. The Bristol and Exeter Railway Company (6). But it appears to us that the bringing up of a train to a final stand-still for the purpose of the passengers alighting amounts to an invitation to alight at all events after such a time has elapsed that the passenger may reasonably infer that it is intended he should get out if he proposes to alight at the particular

station.

It is not necessary here, any more than in Praeger v. The Bristol and Exeter Railway Company (6), to say what would be the effect, if a passenger should alight where the danger was visible and apparent, as where a passenger gets out in broad day, trusting to his ability to

overcome the difficulty. In the case before us, the place where the plaintiff was left to get out was not lighted, and she could not see and was not aware of the interval which separated the carriage from the platform, and got out believing she was about to step on the platform. We think that the leaving a carriage which has been brought up to a place at which it is unsafe for a passenger to alight undercircumstances which warrant the passenger in believing that it is intended he shall get out, and that he may therefore do so with safety, without any warning of his danger, amounts to negligence on the part of the company, for which at least, in the absence of contributory negligence on the part of the passenger, an action may be maintained.

The case is distinguishable from that of Bridges v. The North London Railway Company (1), on the ground that in the latter the carriage from which the passenger alighted had been drawn up in a tunnel in the vicinity of the station. In that case there was no evidence that the train had come to a final stand-still, or in other words, arrived at the spot where the company's servants intended the passengers to alight. The question, therefore, was whether there was evidence of anything done by the company's servants which induced the passenger to believe it had so arrived, and act on that belief. But in the present case the evidence of the conduct of the company's servants was such as to warrant the jury in finding that the train had really come to the final standstill, and that the company's servants meant the passengers to get out there or be carried on. Of course a multo fortiori the jury might find that the conduct was such as to induce the plaintiff to think so, and to act upon that belief.

We therefore are of opinion that the rule nisi to enter a verdict for the defendants was properly discharged by the Court of Common Pleas.

Judgment affirmed.

Attorneys-E. P. Cearns, for appellants; Henry Harris, for respondent.

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The general rule laid down under 14 & 15 Vict. c. 99. 8. 6, that where inspection of documents is granted, the applicant is to pay the costs of inspection, still holds good and applies to an order to inspect documents of which discovery has been obtained by virtue of the Common Law Procedure Act (17 & 18 Vict. c. 125), 1854, s. 50; and the mere fact of the inspection being lengthy and expensive, does not constitute such an exception to the rule that the Court will interfere with an order made in accordance with it.

This was a rule calling on the defendants to shew cause why an order of Hannen, J., should not be varied under the following circumstances. The plaintiff's having obtained discovery with respect to a large mass of documents applied for an order of inspection to Martin, B., who signed one in the usual printed form used in all the Courts, containing the words " on payment of 6s. 8d. costs and 4d. per folio for copies," with the understanding, however, that the parties should agree on the proper amount. The parties went before a Master, who decided that 6s. 8d. per hour should be the amount, upon which the plaintiffs being dissatisfied, applied to Hannen, J., who signed an order to amend the order of Martin, B., by striking out the words 6s. 8d., the amount however to be referred to a Master to decide with reference to the duration and character of the labour or care imposed on the defendants' attorneys by the inspection. The present rule was moved for in order to vary this order by making the costs of inspection costs in the cause.

R. G. Williams shewed cause.-It is no doubt likely that the inspection will be a long one, but this affords no reason for departing from the ordinary rule, and there is a general rule that (though the costs of the order are costs in the cause) the applicant should pay the costs of the inspection; a rule which is so inveterately followed, that in all the Courts there is

used a printed form such as that used in the present case, and as to matter of discretion, the discretion of two judges has already been exercised, and there is no reason shewn for interfering. As respects authority, the rule is supported by Hill v. Philp (1), Gray on Costs, 364, and Day's Common Law Procedure Act, 3rd ed. 257, and also, when the judgment is properly examined, by Stilwell v. Ruck (2). [He was then stopped.]

Watkin Williams and Cohen, in support of the rule.-In this case the terms in truth were left open by both the learned judges who made orders; and it was stated by Willes, J., when the rule nisi was granted, that at chambers he always discards the 6s. 8d. and makes the costs of inspection costs in the cause. If the inspection be merely to get at evidence or qualify a witness, it may be a correct rule that the applicant should pay the costs, but where, as in this case, it has been established that the documents are admissible evidence, then the costs ought to be costs in the cause, and no sensible distinction can be made between the costs of answering interrogatories and those of inspection. Though in small matters it may not be worth while departing from the form, and it may therefore generally be used, in heavy cases to act on it would be a denial of justice as the opposite party having no interest in the matter by affording no assistance may cause a large expense. As respects the cases cited, it is submitted that they do not apply as this is an order following discovery, and made under the powers in the latter portion of section 50 of the Common Law Procedure Act, 1854, and not under section 6 of 14 & 15 Vict. c. 99. What is said in Day's Common Law Procedure Act, 234, and Daniel v. Bond (3) favour the present application.

BOVILL, C.J.-The provisions of 14 & 15 Vict. c. 99. s. 6, are not superseded by section 50 of the Common Law Procedure Act, 1854. They both stand together and

(1) 7 Exch. Rep. 232; s. c. 21 Law J. Rep (N.S.) Exch. 82.

(2) 4 Hurl. & N. 468.
(3) 9 Com. B. Rep. N.S. 716.

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