網頁圖片
PDF
ePub 版

When negligence is self-evident and is presumed.—And there are some circumstances which are so pregnant with negligence, that they are deemed of themselves without any further knowledge of the surrounding facts to be prima facie evidence of such negligence. As to these the maxim is, res ipsa loquitur, and the plaintiff need give no further evidence than this fact, for it lies on the defendants to explain it away. Thus it is, when there is a collision between two trains of the same railway company; as some negligence must have been due to one or both of their sets of servants, the company is held prima facie negligent.1 So it is, where a sack falls from a top window of a flourdealer's premises into the street or highway;2 or a brick falls out of a railway bridge on the highway; or a passenger's eye is struck by the driver's whip; or a horse kicks through the carriage which it is drawing. And the breaking down of a coach, owing to a defective axle-tree, which might have been discovered by inspection, has been treated as prima facie negligence. The mere happening of an accident, however, may be said to be more usually not sufficient prima facie evidence of negligence than the contrary; and one can seldom with safety judge of it without knowing the surrounding facts.7

5

3

Negligence is always a question of fact and circumstances. -It is thus manifest that negligence on the part of the wrongdoer is always a question of circumstances, and can only be decided by reference to the situation in which such wrongdoer was at the time; and the degree of care, or want of care, is also to be estimated accordingly. Innumerable occasions occur for two persons coming into collision in some form or another, and whether one is to blame or not at any particular moment, can only be traced out by inquiring what he was doing at the time, whether he was engaged in his own lawful business, and whether, while so engaged, he was sufficiently mindful of the business of others.

1 Skinner v L. & Brighton R. Co., 5 Exch. 787. 2 Byrne v Boodle, 2 H. & C. 722 ; Scott v London Docks, 3 H. & C. 596; Briggs v Oliver, 4 H. & C. 403. 3 Kearney v L. B. & S. C. R. Co., L. R., 5 Q. B. 411; L. R., 6 Q. B. 759. 4 Ward v Gen. Omnibus Co., 42 L. J., C. P. 265. 5 Simpson v Omnibus Co., 42 L. J., C. P. 112. 6 Sharp v Grey, 9 Bing. 457. 7 Hammack & White, 11 C. B., N. S. 588.

VOL. I.

S

Classification of circumstances displaying negligence.— As the business of life is infinite, and negligence is thus always a relative term, no rule can be laid down for the infallible discovery of what is or what is not negligence in each case. Nevertheless there are some well-known classes of circumstances, out of which danger to life usually arises, and as to these some subsidiary rules of viewing facts have been arrived at, which amount almost to rules of law.

Negligent carriage of passengers by railway.—In considering railway accidents causing injury to life, as a fruitful source of actions, it must be recollected, that the usual contract of a carrier is, not to carry the passenger safely at all hazards, or to insure his safe arrival, or to insure that the carriage is free from latent defects; but it is merely to use due care and diligence in conveying him in a carriage reasonably believed to be sound; and in this, as in all other cases, inevitable accidents may occur, which imply no negligence on the part of the carrier.

Railway accidents when implying negligence.-It is sometimes said that the mere fact of a railway accident having occurred, when nothing more is known about its cause, is prima facie evidence of negligence on the part of the railway company; but this is only true when the known circumstances reasonably exclude any other cause.1 For an accident may be due to some latent fault in a wheel, implying no negligence whatever in any person, since no care can prevent or discover such a fault. And this is a rule which applies also to the maker of goods, intended to be used for a particular purpose, but somehow failing to accomplish that purpose. Or the accident may be caused by some wilful or malicious act, or some negligence of a stranger or third party, for whom the company cannot be made answerable. Hence also, where a child strayed upon a railway and was killed, but no one could tell how the child got there, there was no prima facie liability to be

3

1 Skinner v L. & B. R. Co., 5 Exch. 787; Bird v G. N. R. Co., 28 L. J., Exch. 3. 2 Readhead v Midland R. Co., L. R., 2 Q. B. 412; 4 Q. B. 379. 3 Randall Newson, 45 L. J., Q. B. 364. 4 Latch v Rumner R. Co., 27 L. J., Exch. 155; Daniel v Metrop. R. Co., L. R., 5 H. L., Ap. 45.

implied from the mere fact of the child being so killed.1 And the mere fact that the railway company might have taken greater precautions to guard against a possible cause of accident, is very seldom to be treated as prima facie negligence, for if so, inquiries into the comparison of opinions, which conflict on nearly every practical matter, would be endless and never satisfactory; as for example whether the metal facings of stairs are safer when made of brass or lead; or whether an iron girder erected by third parties over the railway would fall down on passengers, if the latter were not specially protected.3

2

Sometimes also a person may take all the risk of injury on himself, in which case he has no remedy, for the ordinary rule will, by his own express contract, have no application; and though the court will be slow to presume such a contract, it is sometimes made out very clearly.* And if the passenger has taken on himself the risk of the travelling, this will include also the risk of coming to and going out of the railway station.5 And for a like reason, if a workman be taken gratuitously in a carriage of the person for whom, and to the place at which, he is to work for that person, and owing to an accident to such carriage he is injured, the driver is not liable, for such workman is merely on the footing of a guest who shares all risks with the host. 6

Courts have often to decide if there is any evidence of negligence. The duty is often cast on courts to say, whether the circumstances, under which a railway accident happened, show any evidence to go to a jury of negligence on the part of the company. On such occasions the court brings to bear on the business of life the same experience and the same estimate of conduct as juries do, except that, whenever it becomes manifest that there is some evidence to go to a jury about which reasonable minds may differ, then the court will itself seldom undertake to say whether that evidence ought to lead to one conclusion rather than another, for a jury is the proper tribunal to weigh and cast up and declare

1 Singleton v Eastern Co. R. Co., 7 C. B., N. S. 287. 2 Crafter v Metrop. Co., L. R., 1 C. P. 300. 3 Daniel v Metrop. R. Co., 40 L. J. (H. L.), C. P. 121. 4 Gallin v L. & N. W. R. Co., L. R., 10 Q. B. 212; Hall v N. E. R. Co., L. R., 10 Q. B. 437. 5 Ibid. 6 Moffatt v Bate

man, L. R., 3 Priv. C. 115.

on which side the balance turns. Thus if a train has arrived at a station-when and under what circumstances the passenger is justified in getting out-whether he has acted thoughtlessly or hastily, without waiting till the train has come to a stand-whether on hearing the name of the station called out, he is justified in assuming that he may get out-whether in stumbling in a dark passage, sufficient care has been taken to light it-all such speculations give rise to numerous questions, which however are chiefly questions of fact as to which no clear rule can be laid down, and it would be idle to attempt it. And in like manner when people cross a railway at a place where the highway is on a level, and there is no local watchman, the degree of care on the part of the passenger must be proportioned to the situation; and while he is bound to look out lest contrary trains be approaching, some weight will be due to the fact whether the company have used sufficient guide-posts and precautions as a fair protection to passengers. And it has been also laid down as a subsidiary rule, that, if one person by a negligent breach of duty expose another person, towards whom the duty is contracted, to obvious peril or to grave inconvenience, though this last may be the immediate cause of the injury, it is not less to be regarded as due to the wrongful act of the wrongdoer.3

Statutory requirements in further protection against railvay dangers.-Though the common law thus protects human life against many accidents arising out of the use of railways, still this has been deemed by the legislature insufficient; and some additional requirements and penalties have been created by statute towards the same end. Many of the details of railway management have indeed been framed

1 Siner v G. W. R. Co., L. R., 3 Exch. 50; 4 Exch. 117; Cockle v L. & S. E. R. Co., L. R., 5. C. P. 457; Robson v N. E. R. Co., L. R. 10 Q. B. 271; Bridges v N. L. R. Co., L. R., 6 Q. B. 377; 43 L. J. (H. L.), Q. B. 151; Weller v L. & B. R. Co., 43 L. J., C. P. 137. 2 Stubley L. & N. W. R. Co., L. R., 1 Exch. 13; Skelton v L. & N. W. R. Co., L. R., 2 C. P. 631; Stapley v L. B. & S. Co., L. R., 1 Exch. 21; Bilbee v L. B. & S. Co., 18 C. B., N. S. 584; Wanless v N. E. R. Co., L. R., 6 Q. B. 481; 43 L. J., H. L., Q. B. 185; Ellis v G. W. R. Co., 43 L. J. (Exch. Ch.), C. P. 304. 3 Jones v Boyce, 1 Stark. 493; Adams v Lanc. & Y. R. Co., L. R., 4 C. P. 744; Gee v Metrop. R. Co., L. R., 8 Q. B. 173; Robson v N. F. R. Co., L. R., 10 Q. B. 272.

more or less for this one object-to lessen the danger to human life; but the present subject requires only a notice of a few special injunctions which bear directly on this one. point. In order to secure the public against the increased danger to human life from railways crossing highways on a level, the Railways Clauses Act imposed the duty on railway companies to keep a gate across each side of the railway sufficient to exclude cattle and horses at that spot, and to keep a proper person to open and shut such gates.1 Under this enactment, as the duty to have a person always at hand to open gates can be enforced, if a passenger himself open the gates without the leave or presence of the company's servant, he usually takes the risk of the passage on himself. And to enhance the safety of passengers, each railway company is bound in certain cases to provide means of communication between the passengers and guard. To throw maliciously and unlawfully any stones or other matters at railway carriages, with intent to injure or endanger the safety of any person in the carriages, is felony; while children under sixteen may be punished in a summary manner for like misconduct. And to put stones or things on railways likely to upset carriages is also a like offence.5

3

Driving negligently and furiously on highways.-The instances of negligence and consequent injury to passengers using a railway belong to one form only of using a particular conveyance. In driving ordinary conveyances in the highway there is found another illustration of the same fundamental rule, which rule is this, that each person must take care not to injure another by driving against him; and the right side of the road is assumed to be common knowledge to all men. The circumstances must always be the main guide, should occasion arise to judge whether due care was exercised. When a driver is guilty of a negligent injury, this arises usually from his being too intent on his own business to give due attention to the business of others. It is owing to this being so

18 & 9 Vic. c. 20, § 47. 2 Wyatt G. W. R. Co., 6 B. & S. 709. 3 31 & 32 Vič. c. 119, § 22; Blamires v Lancaster R. Co., 42 L. J., Exch. 182. 4 24 & 25 Vic. c. 100, § 33; 27 & 28 Vic. c. 47 ; 34 & 35 Vic. c. 78, § 13. 5 24 & 25 Vic. c. 97, § 35; 27 & 28 Vic. c. 47; 34 & 35 Vic. c. 78, § 13.

« 上一頁繼續 »