Chief Commissioner for Railways & Tramways (NSW) v Boylson [1915] HCA 24; (1915) 19 CLR 505 (8 April 1915)

HIGH COURT OF AUSTRALIA

The Chief Commissioner for Railways and Tramways (New South Wales) Defendant, Appellant; and Boylson Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

8 April 1915

Griffith C.J., Isaacs, Gavan Duffy and Rich JJ.

Ralston K.C. and C. E. Weigall, for the appellant.

Carlos and John Hughes, for the respondent, were not called upon.

Griffith C.J.

So far as regards the question of negligence on the part of the defendant, I think that there was abundant evidence. It is not necessary to refer to it in detail. I need only mention the position of the station close to a deep cutting, the curve in the line, the speed of the train, the darkness of the night, the absence of whistling or other warning. These matters, when taken in conjunction, afford ample evidence to justify the jury in coming to the conclusion that the defendant was guilty of negligence.

With respect to the main point, that the deceased was guilty of contributory negligence in not looking to see whether a train was coming before she crossed the line, I will mention some facts which appear from the evidence. The distance from the point from which she started to cross the line on the road provided by the defendant for that purpose, and which he invited her to use, to the point where she was struck by the engine was about five yards. At the rate at which she would probably be walking on such a night, it would have taken her at any rate seven or eight seconds to walk that distance. The engine-driver says that when he passed the distance signal, which is sixty-three yards from the crossing, the train was travelling at the rate of twenty miles an hour, or about ten yards in a second. Allowing for the slowing down over the short distance of sixty-three yards, the train must, in the seven or eight seconds during which the deceased was walking over the crossing, have travelled at least fifty or sixty yards, and must have been at least that distance from her when she started. At that distance, owing to the nature of the ground, the engine would have just come into view around a curve from a deep cutting. Assuming that the deceased had then looked, she might or might not have been able to distinguish the head lights of the train. Under these circumstances—without in any way infringing the rule that it is the duty of a person about to cross a railway line on which trains are running to look before crossing, and that, whether he looks or not, he is to be treated as having all the knowledge that he would have acquired by looking—it is sufficient to say that there was evidence which would justify the jury in finding that if she had looked before leaving the end of the platform, and after she had an open view of the line, she would not have heard or seen anything to lead her to think that the train was so near as to make it unsafe for her to set out upon the short distance of twenty-one feet across the lines; and that while she was picking her steps in the dark the train, owing to its excessive speed, came suddenly upon her. If that was so, she was not guilty of any negligence which contributed to the accident. If she did not look, her omission to look did not contribute to the accident, because if she had looked she might reasonably have thought it safe to cross. There was also positive evidence to the same effect. One passenger had already crossed before the deceased started. Another, who lived in the neighbourhood and was familiar with the station and its conditions, deposed that when he saw the deceased on the up line he thought she had plenty of time to cross. Under these circumstances I am of opinion that the jury were justified in finding that the deceased was not guilty of any negligence which contributed to the accident.

With respect to the subsidiary point, whether Miss May Boylson suffered any pecuniary loss by reason of the death of her mother, it is sufficient to refer to Taff Vale Railway Co. v. Jenkins[1] as an authority for the proposition that it is not necessary that there should be an immediate pecuniary loss, but that a prospective pecuniary loss may be taken into consideration. There was ample evidence to warrant the jury in finding that there was in her case a prospective pecuniary loss.

For these reasons I am of opinion that the appeal fails, and should be dismissed.

Isaacs J.

I agree that the appeal fails. For myself I think it sufficient to say that there was ample evidence to justify the jury in finding that the defendant was guilty of negligence, and also that the deceased was not negligent, or, if she was, that her negligence did not contribute to the accident.

I also think that there was sufficient evidence from which they could find that Miss May Boylson had a reasonable expectation of pecuniary advantage if her mother had not been killed.

Gavan Duffy J.

I think that the appeal should be dismissed. The jury have found that the accident was caused by the negligence of the defendant and that the deceased was not guilty of contributory negligence. I think that there was ample evidence to justify both findings. I also agree that Miss May Boylson was entitled to the share of the damages assessed for her by the jury.

Rich J.

I agree that there was evidence to support the findings of the jury as to negligence on the part of the defendant and the absence of negligence on the part of the deceased. I also agree that prospective loss accrued to Miss May Boylson from the death of her mother.

Appeal dismissed with costs.

Solicitor, for the appellant, John S. Cargill.

Solicitor, for the respondent, T. J. Purcell.

[1] (1913) A.C., 1.