Franklin v Victorian Railways Commissioners

1. (1923) S.C. (H.L.) 43. 2. (1923) S.C. (H.L.), at p. 56.

The distance between the Camberwell and the East Camberwell stations was said to be approximately half a mile. The train ran upon the down or northern track. As the track left the Camberwell station there appears to have been a curve or bend but for some distance before the point where the accident occurred the line is straight. The track rises at a grade of about one in fifty. The top of this bank is reached at a comparatively short distance before arrival at East Camberwell, into which station there is a slight curve. A seven-carriage train is one hundred and forty yards long. The plaintiff was said to have been travelling in the first compartment of the fourth carriage from the front. He and a companion, according to the evidence, were standing talking to a girl who was sitting with her back to the direction in which the train travelled. The plaintiff was a short distance from the door as the train moved out of Camberwell with his left hand on the luggage rack, which doubtless ran across the compartment. In his other hand he held a cigarette. Witnesses for the plaintiff say that the train swayed, lurched, jerked or jolted (various expressions are employed) and the plaintiff fell out of the open door. There is no completely specific evidence that at the moment when he fell, his hand was on the luggage rack. But there is evidence of its being in that position very shortly before. The epithets which the witnesses use as to the intensity of the jolt are doubtless important and it will be necessary to refer to what they say. But no technical evidence was given as to why the train should or might jolt or sway. No evidence was led of what would account for its doing so, either as a matter of fact or as a matter of hypothesis. Perhaps it was treated as a matter depending on common experience. Some witnesses speak of the trains always swaying as they come out of Camberwell but the train from which the plaintiff fell had long passed that point. A suggestion was made that the leading carriage or carriages might have reached the curve in to the East Camberwell station but that is anything but borne out by calculation or estimate of distance. The motorman of the train did not know of the accident until he reached Box Hill, five stations further on, but both he and the guard denied any unusual jolt and according to their evidence nothing in the driving of the train could account for it. But of course the jury were not bound to accept what they said. Of the evidence of the passengers in the compartment the strongest in its description of the jolt was that of the plaintiff's companion. He said that as they were going out of the Camberwell station (it would be a couple of hundred yards and he had been talking to the plaintiff and turned round to talk to the girl), the train gave a lurch. He turned to the plaintiff and saw his feet going out of the door. The witness said that had he himself not been holding on he would have been thrown to the floor. At another point in his evidence he said that he was thrown more or less on an angle to the left. He did not bump against the plaintiff. He had noticed the plaintiff holding the rack half a minute before. The train usually swayed badly going out of Camberwell.

The girl in giving evidence said that she looked up at the plaintiff to say something and saw him disappear. Asked if at about the time he fell she noticed anything about the train she answered: "Yes, it gave a very sudden jerk just about then". Another occupant of the compartment, an habitual traveller by that train, said that as it pulled out of Camberwell the train gave a sharp lurch, he stared up at the plaintiff and he had gone. "It" (the train) "just gave a sharp jerk and that was it". This witness associated it with the bend coming from Camberwell but that was not consistent with the place where the plaintiff was found, which was fixed. Accompanying this witness was another regular traveller by the train who was seated in the compartment. He noticed the plaintiff holding the luggage rack but he became absorbed in his paper; he heard a crack (most of the witnesses speak of a crack as the plaintiff fell). He did not see anything; but the plaintiff had gone. He said that the train always rocks going around the curve out of Camberwell; but he was engrossed and the rock seemed to become part of the journey.

The basal question in the case is whether the foregoing evidence of swaying, a jerk, a lurch or a jolt, forms a sufficient foundation for a finding of negligence against the commissioners their servants or agents.

After full consideration I have reached the conclusion that it does not. Whether it is described as a jerk or jolt or sway or lurch of the train no doubt the jury might reasonably find on the evidence that it was unusual in degree and they might reasonably think that it was the occasion of the plaintiff's falling through the door-way. But to that the other circumstances must be added. The train was proceeding up a bank. The track was straight. There was no evidence that the train was travelling at a high speed; there was evidence that it was not and the place and circumstances suggest that it would not be doing so. There was no reason to apply the brakes. If one is to rely on common experience, to reduce the application of power would not cause a jolt, etc. If the bend at Camberwell set up an oscillation that was an appreciable time earlier and in any case it would be unreasonable to accept the view that the bend coming out of that station had anything to do with what happened where the plaintiff fell. If it is attributable to bad or careless driving by the motorman no hypothesis is put forward as a matter of evidence as to what he might have done to cause the unusual movement and if common knowledge is relied upon it suggests none. There is no evidence concerning track gauge and the possible relation of a looseness or tightness of track gauge to such an occurrence and certainly it is not a matter on which uninformed speculation is admissible. If there was a defect in a tyre or wheel, it must have been felt on the journey. Imagination might go on to guess at one contingency after another; but the fact is that, unless adequate knowledge about railway engineering and practice would suggest otherwise, an unexplained sway or lurch or jerk or jolt in a train travelling in an ordinary way in ordinary conditions does not seem in itself to raise a presumption of negligence. It is not a matter of common knowledge that it would be so unlikely to occur without negligence on the part of the driver or some other servant of the commissioners as to point prima facie to negligence. If a knowledge of railway engineering and practice would suggest hypotheses which would make the lurch more suggestive of negligence than not, then the hypotheses should have been explained by evidence and not left to uninformed reasoning. No doubt the fact that passengers might be expected to be standing and to have the doors open provided an additional reason for care in driving the train. But that adds nothing in proving a breach of duty. All this case amounts to is that a young lad, who may or may not at the moment have been grasping the rail of a rack, fell through the open carriage door at which he was standing when the train gave an unusual lurch in the course of a journey of an ordinary character. The degree of lurch or whatever it may be called doubtless was a matter for the jury to estimate but the estimate could be made only by considering all the descriptions given to it by the plaintiff's witnesses, not one to the exclusion of others.

On the whole case I do not think that it can reasonably be said that the accident can be better accounted for by supposing some act of negligence on the part of the commissioners or their servants than upon other hypotheses. The verdict does not appear to me to find sufficient support in the circumstances proved. There was not enough reasonably to raise a presumptive case of negligence upon the part of the commissioners or their servants and the verdict was properly set aside. The appeal should be dismissed.

The plaintiff's case was left to the jury on the basis of res ipsa loquitur and they made a general finding of negligence against the defendants. I take the view, held by the Supreme Court, that the whole case contained in the particulars of demand consists of allegations of negligence and breaches of statutory duty in respect of driving, maintaining and controlling the train from which the plaintiff fell. There was no affirmative evidence of any of the particulars given by the plaintiff of these defaults but there was evidence called by the defendants which could have exculpated them from these alleged defaults, if the jury had accepted the evidence. It does not appear that before the summing-up the plaintiff abandoned the particulars of demand for a case based upon the principle of res ipsa loquitur. The Supreme Court decided unanimously that this principle applied to the case but because of the limitations of the particulars of demand there was a mistrial. But the court was divided on the question whether the result should be to enter judgment for the defendants or order a new trial. Sholl J. only was of the opinion that there should be a new trial. In my opinion, that is the better order to make in the interests of justice, if the nature and character of the accident makes this case one of res ipsa loquitur. The question depends upon the evidence of the extreme severity of the lurch or jerk given by the carriage, and its consequences. There was evidence from which the jury could find that the lurch or jerk was markedly more severe than any such motion usually experienced by passengers in a train, and that it caused the plaintiff to fall from the train. According to evidence called by the plaintiff, he was standing near an open door of a crowded carriage, and was holding on to a rack. This was a carriage with sliding doors. It was open to the jury to find that so extreme a lurch or jerk occurred that holding on to the rack was not a sufficient safe-guard. The jury negatived contributory negligence. The evidence clearly entitled the jury to conclude that the accident was such as does not occur in the ordinary course of travelling by train, if those who have the control of the train and the railway line use proper care for the safety of the passengers.

Accordingly, I agree with the trial judge and the Supreme Court that having regard to the evidence, and apart from the particulars of demand, the former was right in leaving the case to the jury upon the basis of res ipsa loquitur. Cases of the same sort are Richardson v. Melbourne Tramway & Omnibus Co. Ltd. [1] ; Trudell v. New York Rapid Transit Corpn. [2] ; and two Canadian cases cited in Can. Abr. Vol. 6 Tit. " Carriers ", cols. 654, 657. In Commissioners for Railways (N.S.W.) v. Corben [3] this Court was equally divided. The evidence in that case did not prove a lurch or jerk of the train so severe or violent as the jury were entitled in the present case to find. There is nothing in the judgment of the Chief Justice of New South Wales in that case which is against applying the principle of res ipsa loquitur in the present case.

1. (1895) 1 A.L.R. 23. 2. (1937) 281 N.Y. 82. 3. (1939) 13 A.L.J. 69.

In the present case the Supreme Court of Victoria decided that a letter tendered by the defendants was wrongly rejected at the trial. On that question, I think that the Supreme Court's decision is clearly right, and I have nothing to add to their reasons.

In my opinion, this appeal should be allowed, and there should be a new trial of the action.

I have had the advantage of reading the judgment of the Chief Justice in this case. I am in complete agreement with his Honour, and I have nothing to add.

Consideration of the transcript in this case has satisfied me that there was no evidence at the trial which was capable of establishing that the appellant's injuries were caused by the negligence of the respondents or their servants. I agree with the reasons given by the Chief Justice in reaching the same conclusion and wish, merely, to add that I can see no material distinction between the facts of the present case and those the subject of consideration in Corben v. Commissioner for Railways (N.S.W.) [4] . Upon the appeal to this Court in the latter case the bench was equally divided but I am of the opinion, as were two members of the Court, that the appeal below was rightly allowed. In particular I would adopt the observations of Jordan C.J. [5] .

1. (1939) 13 A.L.J. 69; (1938) 39 S.R. (N.S.W.) 55; 56 W.N. 7. 2. (1938) 39 S.R. (N.S.W.), at pp. 63, 64; 56 W.N., at p. 9. Windeyer J.

I consider that this appeal should be dismissed on the ground that there was no evidence on which the jury could infer that the plaintiff's fall from the train was caused by the negligence of any servant of the Railways Commissioners. I have come to this conclusion with some hesitation for it differs from the view of the Supreme Court of Victoria. There all the learned judges who heard the matter thought that there was some evidence that the plaintiff was thrown from the train as the result of some underfined negligence. The majority nevertheless held that he was not entitled to the benefit of the jury's verdict because they considered he had failed to establish negligence of the kind set out in the particulars of his claim. Sholl J. took a somewhat different view. He too thought that "the jury was entitled having regard to the way the matter was left to them by the judge to find for the plaintiff by means of the application of the maxim res ipsa loquitur "; but because of what he held to be a wrongful rejection of evidence he considered that there should be a new trial. During the hearing before this Court I was inclined to the view that, if there was evidence of negligence, the plaintiff was entitled to hold his verdict notwithstanding the somewhat limited scope which, on one construction, the particulars had. However, in the view I take of the case, it becomes unnecessary to discuss that; and I would only say that I adhere to the opinion I expressed in the course of the hearing, when the question of speed was under discussion, that what is a proper and safe speed on a particular stretch of line cannot be considered apart from the circumstances, including the state of the track, whether the carriages are crowded, what type of carriage they are, whether they have doors which can be shut and so forth.

It was contended that the jury could find the defendants were negligent because there was evidence that the plaintiff fell from the train after it gave what was variously described as "a very sudden jerk", "a sharp lurch", "a most exceptional lurch". The jury were, of course, entitled to accept the evidence that a lurch had occurred, and that in consequence of this lurch the plaintiff lost his grip, if he was holding on at the time - as to which there was no certain evidence - and thus fell, or as it was put was thrown, from the train. It is, however, common experience that trains lurch and sway and jolt and jerk; and their oscillations are not regular or rhythmical. Some jolts and jerks are more marked than others, and in the course of any journey some jolts may occur which could fairly be called sudden, sharp and exceptional. Is such an occurrence of itself evidence of negligence? I think not. The general principle cannot be put more strongly in favour of the plaintiff than in the unanimous judgment of this Court in Bradshaw v. McEwans Pty. Ltd. (unreported but quoted in Holloway v. McFeeters [1] ): - "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood" [1] . To take the classic example, the course of common experience is that barrels do not fall to the road from the upper floors of a warehouse without negligence on the part of someone. But the fact that a passenger falls from a train can of itself be no indication of any fault on the part of those in charge of the train. It is as likely to be the consequence of some carelessness on the part of the passenger himself, or of a fellow passenger, or to be a pure accident. And I do not think an inference of negligence on the part of those in charge of the train becomes any more justifiable because a passenger standing near an opened door lost his balance when the train swayed, lurched or jolted. I do not doubt that some distinct and sufficiently dramatic episode, as for example if a train were to stop so suddenly that all passengers were thrown from their seats, could, in the absence of any explanation of how or why it occurred, be evidence of negligence on the part of those concerned in the management and control of the railway. But here the evidence seems to me to fall short of anything as definite and out of the ordinary as that. At the trial the defendants' counsel at the close of the evidence submitted that no case had been made against the defendants. This, I think, was correct and I therefore agree that judgment should be entered for the defendants.

1. (1956) 94 C.L.R. 470. 2. (1956) 94 C.L.R., at pp. 480, 481.