Edwards v Municipal Tramways Trust [1921] HCA 4; (1921) 29 CLR 129 (7 March 1921)

HIGH COURT OF AUSTRALIA

Edwards Plaintiff, Appellant; and The Municipal Tramways Trust Defendant, Respondent.

H C of A

On appeal from the Supreme Court of South Australia.

7 March 1921

Knox C.J., Gavan Duffy and Starke JJ.

C. T. Hargrave, jun. (with him N. J. Hargrave), for the appellant.

Villeneuve Smith K.C. (with him O'Halloran), for the respondent.

The Court delivered the following written judgment:—

Mar. 7

Knox C.J.,

Gavan Duffy and Starke JJ.

The plaintiff, Alice May Edwards, sustained serious injury in a tramway accident, and brought an action in the Supreme Court of South Australia alleging that these injuries were caused by the negligence of the defendant, the Municipal Tramways Trust, or its servants.

The plaintiff was a passenger on a tram-car proceeding from Adelaide to Unley, and her destination was Gilles Street on that route. As the car approached Gilles Street another passenger, who also wished to alight there, rang the bell for the car to stop. The plaintiff, according to her evidence, rose to get out as soon as the bell rang, and proceeded towards a gangway in the centre of the car. The car had stopped when she reached the gangway. The conductor was at this time standing in the gangway, with his back to the plaintiff, holding the bell-cord, which he had held from the moment when the car stopped, and looking towards the rear of the car apparently to see that all was clear before he gave the signal to start again. The conductor, according to the plaintiff, moved slightly to one side; and she asserted that she thought he did so to allow her to alight. The plaintiff passed between the conductor and the rear end of the car. She said:—"I stepped out on to the step. I got on to the step. Whilst doing so the bell rang, and as I stepped off the car started. I fell. I was caught and dragged by the car." And in this manner the plaintiff asserted that her injuries were sustained. Some corroborative evidence was called in support of the plaintiff's version of the facts. The defendant, on the other hand, called evidence to show that the plaintiff must have been in a position of safety behind the conductor on the gangway when the car started, and that she got on to the step of the car for the purpose of alighting whilst the car was in motion. The learned Judge who presided at the trial charged the jury in a manner that was not unfavourable to the defendant, but a verdict was found for the plaintiff and judgment entered accordingly. An appeal was taken to the Supreme Court of South Australia in Full Court, which set aside the judgment for the plaintiff and entered judgment for the defendant. And from this judgment of the Full Court an appeal has been brought to this Court.

The learned Judges of the Supreme Court were of the opinion that it was the duty of the plaintiff to make the conductor aware that she wished to alight before he pulled the bell-cord as a signal to restart the car, and that the plaintiff had failed in this duty. But, according to the admitted facts, the car had stopped for passengers to alight by reason of a signal given by one of the passengers on the car. And, in our opinion, it was for the jury to say whether in the circumstances the plaintiff was justified in assuming that the car would not be started until she had alighted. The credibility of the plaintiff and the inferences to be drawn from her version of the facts are matters for the jury, and beyond the functions of a Court of appeal.

The learned counsel for the Tramways Trust insisted before us that the verdict was against the evidence and the weight of evidence. A passage from Middleton v. Melbourne Tramway and Omnibus Co.[1] is very appropriate to this case. "It is not for a Court of appeal to say whether the verdict was right or wrong in the sense that the Court itself would or would not have given it. The real question is whether it was such a verdict as reasonable men might have given. If it is, we have no right to say that they have ignored the duty cast upon them. There was a considerable body of evidence before the jury on both sides, and while there does not appear to have been much contest as to veracity, the question largely turned upon the credence which the jury would give to this witness or that on the score of reliability. As to positions and distances the estimates were very various, and the extreme ones probably mere guesses. There was ample cross-examination, and the jury had the fullest opportunity of arriving at a just selection of the evidence upon which it was safe to place reliance. That is an opportunity denied alike to the learned Judges of the Supreme Court and to ourselves." There is ample evidence, in our opinion, to justify the verdict of the jury.

The appeal must be allowed, the judgment of the Supreme Court dated 24th August 1920 set aside, and the judgment of the Supreme Court dated 20th May 1920 restored. The plaintiff must also have her costs before the Supreme Court in Full Court and of the appeal to this Court. We were asked to deprive the plaintiff of the extra cost occasioned by this appeal being heard in Melbourne, but the application should have been made when the order was obtained for the hearing in Melbourne, and at that time the Municipal Tramways Trust offered no objection to the appeal being so heard. We decline to make the order sought.

Appeal allowed. Judgment of the Supreme Court dated 24th August 1920 set aside, and judgment of the Supreme Court dated 20th May 1920 restored. The plaintiff to have from the defendant her costs before the Supreme Court in Full Court and of the appeal to this Court.

Solicitor for the appellant, N. J. Hargrave.

Solicitor for the respondent, T. S. O'Halloran.

[1] [1913] HCA 45; 16 C.L.R., 572, at p. 579.