Fraser v Victorian Railways Commissioners [1909] HCA 5

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which the deceased was travelling, that is, from west to east. His lights appear to have been shining strongly according to the evidence of observers who saw him shortly before the accident. He had good sight and hearing. Although one of his horses is said to have been very nervous with steam, there is nothing to show that they were not easy to drive. It was a wild and stormy night. The wind was in the north north west and, as the line runs approximately north and south - a little east of north - the wind would be blowing somewhat across the line, but it was against the direction in which the train was coming. The train was a mixed one, and there was evidence that a mixed train makes more noise than a passenger train. At the same time it is said that the train runs very silently there. The crossing at which the accident happened is on a down grade. Part of the down grade which the train would have to traverse before reach- ing the crossing is fairly steep; nearer the crossing it is not so steep, and close to the crossing it is steep again. It was necessary therefore for the engine to shut off steam on this down grade. There is no evidence that there was any obstruction to the view of the deceased as he approached the line. Nobody saw the accident happen, but a crash was heard which evidently was the crash caused by the train and the waggon meeting. A witness swears that he heard the train rolling down the incline 60 or 70 yards from the crossing, and rattling, and that three or four seconds afterwards he heard a crash. A farmer from Bundoora, was with two friends about 150 yards from the crossing, and knew the train was about due - as indeed the deceased knew, or ought to have known. He speaks of the darkness of the night and says that the train would not be heard rolling down the incline on that night, though the immediately preceding witness had heard the train rattling. There is a railway regula- tion which was put in evidence and was as follows : - '" No. 247.

Enginemen must in all cases when approaching cattle pits keep a specially sharp lookout and give a long and loud whistle of not less than 5 seconds duration at such distance from the crossing as will give ample warning of the approaching train. They must give this matter special attention both by day and by night and

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bearing on a case of this kind. Lord Halsbwry L.C. said: - "My Lords, it is incumbent upon the plaintiff in this case to establish by proof that her husband's death has been caused by some negli- gence of the defendants, some negligent act, or some negligent omission, to which the injury complained of in this case, the death of the husband, is attributable. That is the fact to be proved. If that fact is not proved the plaintiff fails, and if in the absence of direct proof the circumstances which are estab- lished are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails, for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition ; 'Zi qui affirmat non et qui negat ineumbit probatio." That is the same principle as was laid down by Earle C.J. and Williams J. in Cotton v. Wood (1). A few lines further on the Lord Chancellor said : - *"If the simple proposition with which I started is accurate, it is manifest that the plaintiff, who gives evidence of a state of facts which is equally consistent with the wrong of which she complains having been caused by - in this sense that it could not have occurred without - her husband's own negligence as by the negligence of the defendants, does not prove that it was caused by the de- fendants' negligence." And Lord Watson said (2) : - * It appears to me that in all such cases the liability of the defendant com- pany must rest upon these facts, - in the first place that there was some negligent act or omission on the part of the company or their servants which materially contributed to the injury or death complained of, and, in the second place, that there was no contributory negligence on the part of the injured or deceased person. But it does not, in my opinion, necessarily follow that the whole burden of proof is cast upon the plaintiff. That it lies with the plaintiff to prove the first of these propositions does not admit of dispute. Mere allegation or proof that the company were guilty of negligence is altogether irrelevant; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injury to somebody, but had no con- nection whatever with the injury for which redress is sought, and therefore the plaintiff must allege and prove, not merely that

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free use of public streets for the purpose of passing and repassing thereon, so as between Railway Commissioners entitled to run their railways across a public road and the members of the public entitled to use that road, the law imposes mutual obligations. Each is bound to exercise his right with reasonable regard to the safety of others lawfully exercising their rights; and each person is bound to take all reasonable precautions for his own safety. Having regard to the danger to the public of trains crossing a highway in such a locality, the law no doubt imposed on the Railway Commissioners the duty of giving some distinct warning of the approach of the train. Apart from the instruction to engine-drivers, which is in evidence, I think it was therefore clearly the duty of the engine-driver, having regard to the prox- imity of the crossing to a centre of population, to give full warning by whistle of the approach of his train. But there was a duty no less binding on the deceased whether the engine-driver whistled or not to keep a look out for trains as he approached the crossing, and to take care that he did not begin to cross'if there was any likelihood of the train striking him before he got over. Such being the rights and obligations of the Railway Commissioners and the deceased, what were the material facts proved? When I speak of facts proved, I mean facts which on the evidence a jury might reasonably find to have been proved. The night was dark, the train was travelling more quickly than usual. As it approached the crossing it was on a slight down grade, had shut off steam, and was not making as much noise as if actually using steam. It was a wild night, and a strong wind blowing from the north was likely to have made it difficult for the deceased to hear the approach of the train. On the other hand, the train was well lighted, the waggon of the deceased was also well lighted, namely, by two powerful motor lamps, which threw a light twenty yards in front of the horses. The waggon was not hooded, and from all the evidence, including the plan put in by the plaintiff, it might, I think, be reasonably inferred that there was nothing to prevent the deceased as he approached the crossing from seeing the train half a mile off. The evidence traces him up to a hundred and fifty yards from the crossing. He was then on the road driving at a walk towards the crossing up the slight incline

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The negligent act charged against the defendants as being the cause of the death was the engine-driver's failure to whistle as his train approached the crossing. Before the ease could go to a jury or be such as to call upon the defendants for an answer, the plaintiff must adduce evidence from which a jury could reason- ably infer that it was that negligent act that caused the death of the deceased. In Wakelin v. London and South Western Rail- way Co. (1), the House of Lords had to deal with a very similar state of facts. he principle there laid down by Lord Halsbury L.C,, as follows, is applicable in all such cases. "It is incumbent upon the plaintiff in this case to establish by proof that her husband's death has been caused by some negligence of the de- fendants, some negligent act, or some negligent omission, to which the injury complained of, in this case the death of the husband, is attributable. That is the fact to be proved. If that fact is not proved the plaintiff fails, and if in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails, for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition; 'Hi qui afirmat non ei qui negat inewmbit probatio'" (2). No case since then has thrown any doubt on that clear statement of prin- ciple. When the deceased came to the crossing he was either on the look out or he was not. If he was on the look out he must have seen the train if it were within half a mile. If he saw it coming there was obvious danger in crossing in front of it, having regard to the well known difficulty of judging the distance of a rapidly approaching light on a dark night. Under such cireum- stances it would be only a reasonable precaution to wait until the train had passed. But if, unfortunately, he took the chances of getting across in safety, his death was caused, not by the neglect to whistle, but by his neglect of reasonable precautions for his own safety. If, on the other hand, he neglected to look when he

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came to the crossing and drove on to it without looking, there again it was his neglect of reasonable precaution for his own safety, and not the engine-driver's neglect to whistle, that caused the death. These considerations are, it may be said, matters merely of surmise and conjecture. That is so. But on the other hand there is no evidence upon which a jury could reasonably find that the deceased was killed by the engine-driver's neglect to whistle rather than by his own neglect of precaution for his own safety in the ways I have indicated. Whatever conclus on they might come to on that issue would be based necessarily on surmise and conjecture, not on evidence. It was urged on behalf of the plaintiff that the deceased was relieved from the obligation to look out for himself at the crossing, because he was justified under all the circumstances in supposing that he would get warning by the engine-driver's whistle of an approaching train, and Smith v. South Eastern Railway Co. (1), was relied on. I was at first much impressed by Mr. Macfarlan's strenuous argument as to the applicability of that authority. But on examination of that case it appears clear that the decision turned on the special facts there under consideration - that is, on the conduct of a railway gate-keeper living in a gate-house at the crossing whose special duty it was to the knowledge of the deceased to walk out to the crossing and hold up a flag on the approach of a train. The Court held that, under the cireumstances proved, the deceased, acting as a reasonable man, might fairly have been misled and thrown off his guard by the conduct of the gate-keeper on that occasion. But there can be no analogy between such facts and those on which the plaintiff has relied in this case. There is nothing special in the circumstances surrounding the failure to whistle at this crossing, which would distinguish it from a failure to whistle at any other of the numerous railway crossings in the neighbourhood of small centres of population throughout Australia. It would indeed be a startling inroad on the prin- ciple that a man using a public road must take reasonable pre- caution for his own safety, if this Court were to hold that a person using a public road where it crossed a railway line was relieved of the necessity of looking out for trains in all cases

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scarcely be any doubt how he actually reached the rails. At all events the jury had abundant material to infer it. He was engaged in his ordinary occupation of milk carrying. He had left home about 5.30 pm. on his way to Greensborough, had partly fulfilled his task in that direction of delivering the empty cans, and was proceeding farther to complete it. He was for 4 months accustomed to the work, and the place, and, from the nature of the employment, in all probability to the time. He was driving a four-wheeled milk waggon drawn by two horses, both quiet, one nervous at steam, but easily controlled. The waggon and cans weighed a little over 1 ton 4 ewt. He had watered his horses a little way back from the crossing and was coming gently up the hill. The night was dark - one witness described it as pitch dark - it was very windy, a wild rough night. The wind came from the north or north-west and, as is usual in this locality with such a wind, probably carried considerable dust. He was on the main road leading to Greensborough, the available metalled portion being, according to the plan, about 20 feet wide. There appears to have been a fair amount of traffic at this time, because, from the evidence given, some ten or twelve persons passed either across or in the immediate vicinity of the level crossing. Some of the traffic was vehicular and some on foot. It was obviously a task of some care to keep to the metalled portion (his bright lights must have materially helped in this), and to watch that he did not come into collision with other traffic on the same road. His duties in driving on this rough night, caring for his own safety and that of others, must have occupied his attention to a great extent. At all events he was not as entirely free to watch along the line as if he had been on foot and the only person on the road. Being accustomed to the road, and, I agree with my learned brother Barton, about that time, he therefore probably knew that about this time a train would be due. If he did, he also knew the practice existing since 1898 of whistling according to the regulation and perhaps relied on it. In that event, Smith v. South Eastern Railway Co. (1), applied. If he did not know of the probable arrival of a train about that time, he would not be expected to be so very watchful. But as he approached the

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crossing there were no gates and therefore no gate-keeper. As to that sec. 10 of Act No. 1299 protects the defendants from any charge of negligence. Still the absence of those usual safe- guards is a material cireumstance in relation to other means of precaution. There was no light at the crossing. The advancing train had lights in front, and its interior was lighted. But it was approaching at a swift rate - faster than usual according to one of the witnesses. It is admitted that it was travelling at from 30 to 35 miles an hour; that is 15 to 17} yards per second. The wind carried the sound of the wheels away from deceased. The train was rocking. It might have been, and probably was, very difficult for anyone however intently gazing at it to judge with any accuracy the distance of the train from the crossing and the rate of its approach. But even supposing a passenger on the road might, if free of all other considerations, have been able by concentrating all his attention on the train to form some fair estimate of the danger, still Fraser was not so favourably situated. He was even more hampered and less called upon to be alert than the deceased in Sluttery's Case (1). But there comes into consideration one circumstance of the highest importance. Regulation 247, issued as far back as 1898, is in these terms : - "Enginemen must in all cases when approaching cattle pits keep a specially sharp look-out and give a long and loud whistle of not less than 5 seconds duration at such distance from the crossing as will give ample warning of the approaching train. They must give this matter special attention both by day and by night and they will be held fully responsible for careful and intelligent obedience to this order." It is evidence to go to the jury that it was a reasonable and proper precaution at that place that the engine-driver should keep a specially sharp look-out, and also to give a long and loud whistle of not less than 5 seconds duration at such distance from the crossing as would give ample warning of the approaching train. Special attention had to be given to this both by day and by night. It stands to reason that the necessity would be greater on a dark wild night, when the wind was blowing from the crossing place.

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The observations of Lord Cairns C. (1), and Lord O'Hagan (2), in Slattery's Case, and of Lopes L.J. in Smith v. South Hastern Railway Co. (8), and the case of Toronto Railway v. King (4), before the Privy Council sufficiently establish the position that such a regulation is evidence that the precautions it requires are reasonable and proper, and that consequently the omission to observe them is negligence. There is therefore ample evidence upon which the jury may find - and as the matter at present stands could scarcely do otherwise than find - that, where cattle pits exist, the precautions stated in the regulations are necessary for the purpose of averting danger to human life at the level cross- ing, in addition to all other means of avoiding peril that are avail- able to those who pass along the roads. There is also evidence that no such whistling took place and therefore no careful Jook- out was kept, that Fraser was using the road in the ordinary manner and in the ordinary course of his daily vocation, with all his senses about him, and under all the circumstances that I have mentioned 5 seconds warning would have enabled him, if driving at 6 miles an hour, to go forward 40 feet and easily escape any danger. No want of caution on his part is proved, much less such as to amount to contributory negligence so strong and clear as to entitle the Court to take the matter out of the hands of the jury. What then is the effect of all this evidence, added to the fact that the man was killed while passing across the level? Is it correct to say as Lord Collins said of Wakelin's Case (5), that there was merely the naked fact of the man being found dead on the line? Is it as consistent with the evidence to say, for instance, that he voluntarily exposed himself to certain death as that the want of the regulation precautions imperiled his life and led to his death? If these precautions are reason- able to prevent injury to those who are exposed to collision with the defendants' trains and while travelling in the ordinary course over the crossings, surely when the precautions are omitted, and a person, who is proved to have been travelling in no unusual way along the crossing, meets the very danger which the precautions are designed to ayert, there is sufficient founda-

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tion for what Lord Halsbury calls "reasonable inference," as opposed to "direct evidence," that the negligence and the damage are in the relation of cause and effect. It seems to me that on the facts I have stated the requirement of Lord Watson in Wakelin's Case (1), is amply satisfied, that there must be evidence of negligence materially contributing to the injury. The objection to this conclusion as stated in the judgment appealed from, and affirmed by the judgments preceding mine, is that the jury are not entitled to find that the negligence caused the death because the connection between the two is not es- tablished, the facts of the case being consistent with both. Now the facts of the case consist partly of the direct testimony, and partly of the inferences which the jury legitimately draw from that testimony. The case for the respondents must therefore depend on the question whether it is legitimate for the jury if they so please to infer that the absence of whistling was the causdé causans of the death. The 'contention adverse to this inference being open to them must rest upon one of three grounds - either that direct evidence is necessary to connect the negligence with the damage, or that it is the duty of the plaintiff to negative contributory negligence, or that contributory negli- gence has been conclusively established. These are all matters of principle, and I thoroughly agree that this case must be determined on principles of law applicable to all. The facts of other cases are only valuable as enabling us to understand the doctrines of law enunciated by the Judges. That direct evidence is not necessary where the character of the negligence is such as to lead naturally to the result complained of seems clear from what Lord Cairns L.C. says in Metropolitan Railway Co. v. Jackson (2). He says: - "The negligence must in some way connect itself, or be connected by evidence, with the accident. Jt must be, if I might invent an expression founded upon a phrase in the civil law, incwria dans locum injurie." Negli- gence "connects itself" with damage, as I understand the meaning of the learned Lords who used the expression, if it is prima facie likely in the circumstances proved and according to the natural course of human experience to produce the result

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tarily and recklessly incurred the risk, or he did not look and suffered the penalty of his negligent omission. This is a clear and distinct legal argument, and if sound, I admit the appeal should fail. But if not sound, it is I think equally clear it should succeed. Now, it is a remarkable coincidence that all these circumstances were urged in Slattery's Case (1), by the appellant company, and though some of the learned Lords agreed with them, the House of Lords decided that the contention could not be supported. To show how strikingly alike the two cases are in this respect, I shall quote some of the observations of the learned Lords. Lord Hatherley, who dissented, said (2), that the deceased " knew that a down train was expected, but I pass that by, and ask whether it is not negligence for a man to pass over a railway at all, without looking to see whether or not a train is approaching. It is clear that the lights of the down train were visible to anyone looking before he crossed the line, but the deceased was beckoning to his friends, and they saw the lights which he did not. If he saw the lights, his negligence was greater in his attempting to cross; if he did not see the lights, he cannot have looked for them." How was that objection answered. First of all Lord Cairns L.C. answered it in this way. He says the night was perfectly clear - a circumstance of differ- ence which tells in favour of the appellant here. He also says the line was a straight line for several hundred yards. The ad- vancing train was perfectly lighted. As soon as the deceased got on to the six-foot way he could see up the line for several hundred yards. If he had looked to the left he must have seen the train, and his conduct was open therefore to the two alterna- tives, either he did see or he ought to have seen the train. But, says the learned Lord, it was night though clear, the man was apparently in an anxious and perhaps flurried state of mind, desiring to help his friend across to get a ticket in time for a train about to leave. And then he says (3): - "He might therefore be supposed when he got to the six-foot way, to have omitted, in his haste, the precaution of stopping and looking up the line to his left, while on the other hand, had the advancing train (1) 3 App. Cas., 1155. (2) 3 App. Cas., 1155, at p. 1170.

Fraser v Victorian Railways Commissioners [1909] HCA 5 - HCA 1909 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (118 paragraphs)

(1) 12 App. Cas, 41, at p. 46. (2) (1903) 2 K.B., 718, at p. 726. (3) 12 App. Cas., 41.