Hale v Victorian Railways Commissioners

Hale v Victorian Railways Commissioners - [1953] HCA 26 - HCA 1953 case summary — Zoe

[4]

The case appears to me to turn entirely on the question whether, having regard to the manner in which the jury was directed as to the alleged negligence of the fireman and guard and as to the considerations affecting that question, such a substantial wrong or miscarriage has been occasioned in the trial as to make it necessary to set aside the verdict for the plaintiff and order a new trial. There does not appear to me to be any disputed question of law involved. The complaints made against the direction relate to matters of fact and of evidence and although it is suggested that the jury may have been misled into a misapprehension or a misapplication of the legal criterion, the jury were correctly directed as to what is the legal criterion itself. The question whether it is a case for a new trial is, however, one of difficulty. To begin with, there can be little doubt that there is no evidence of negligence on the part of the guard of the train and that the possibility of his being negligent ought not to have been left to the jury. Yet it was mentioned in such a way and so little was made of it that it seems to be agreed on all hands that in the particular circumstances the possibility of the jury having based their verdict upon it may be put aside. The real question relates to the possible negligence of the fireman. The evidence of negligence on his part was slight and I am not sure that the true ground of the complaint of the defendant commissioners is not that this item of negligence ought to have been withdrawn from the jury. But that is not the ground upon which the Supreme Court of Victoria proceeded and on the whole I think that it was open to the jury to infer, if they thought proper, that at a time when the disaster might have been avoided by quick action, the fireman either did, or ought to have, become aware that Forbes was about to drive the motor bus across the line in front of the approaching train, whether because he did not see it or because he thought he had time to get across and that the fireman was negligent because he delayed calling out "red light" to the engine driver.

[6]

Another inference reasonably open was that the fireman ought to have acted upon the assumption that the bus driver was unconscious of the approach of the train, because no sufficient warning whistle had been given, the bus driver's view of the changing lines of vision was obstructed and a train would on that afternoon be unexpected. In his charge to the jury the learned judge did not deal with the question for the jury which thus arose in a manner that can be regarded as altogether satisfactory, but I do not think that there was such a misdirection as to require that the verdict should be set aside. I am unable to agree with the view taken in the Supreme Court that there was a real likelihood, created by the direction, of the jury's supposing that simply because the fireman saw that upon the road a bus was approaching, he ought to have taken measures to stop the train lest the bus should not pull up to let the train pass. I do not think that the jury would suppose that his Honour meant in any way to suggest that a train crew might not rely upon road traffic heeding the warnings of whistle and notice boards and might not accordingly proceed at speed over level crossings unless there was reason to think that a vehicle was actually endangered. His Honour spoke to jurymen who shared the common experience and understanding of the community as to the use of level crossings and the practice and indeed the necessity of trains travelling over them in reliance upon the road traffic paying heed to the warnings and allowing them to pass. I do not think that the jury would misconstrue his direction and treat the train crew as under a duty of care at variance with common practice. At one point in the direction the learned judge pointed out that the fireman had not much time to act but added that if the jury nevertheless thought that a reasonable man in the circumstances should have concluded that there was a danger and that a catastrophe threatened, they might think he ought to have acted at once. The expression "a catastrophe threatened" seems apt enough to convey the point. In other places more equivocal references to "seeing the danger" occur. But I repeat that I am unable to think that the probability of the jury being led to adopt the view suggested in the Full Court was so real as to call for a new trial. There is no express affirmative statement contained in the summing up which has such a meaning.

[34]

For a proper understanding of the argument advanced on behalf of the commissioners, it is necessary to refer to some of the facts of the case. The Dimboola Road, at a point where it runs approximately from the south-east to the north-west, crosses the railway line on the western outskirts of Horsham. In the vicinity of the crossing, the railway line runs approximately from south-west to north-east and shortly after crossing the road it joins another railway line as it approaches Horsham Railway Station. Immediately before the accident the bus was travelling along the road towards the north-west and the train, travelling to the north-east, was approaching from the left-hand side of the bus. But, by reason of the existence of a dwelling in the angle contained by their respective lines of approach, they did not become visible to one another until the locomotive was about forty yards from the crossing and the bus about sixty yards away from that point. The driver of the bus did not see or hear the train until they were so close together that the accident could not be avoided. Then, by accelerating, the driver of the bus endeavoured to get clear of the train. The train, however, struck the bus towards the rear and grave injuries were caused to the appellant. The fireman who was keeping a look out on the right-hand side of the locomotive gave evidence to the effect that he saw the bus when it was about sixty yards away from the crossing. He said that when he first observed the bus it was travelling at about twenty-five miles per hour but it commenced to reduce speed and he assumed that it would not attempt to cross in front of the train but would stop as it came to the crossing. There is some corroboration of the fireman's evidence that there was some reduction in the speed of the bus at or about this point. This witness then went on to say that having observed the bus slacken speed he did not pay a great deal of attention to it until it was about twenty-five yards from the crossing when it began to increase its speed. At this stage he called out to the driver, who was stationed on the other side of the locomotive, and the emergency brakes were then applied. In the circumstances as they existed at that point of time a collision was inevitable and took place with the consequences to which I have briefly referred.

[36]

While I agree that the duty of the fireman was no higher than these passages indicate, it is, I think, not unimportant to point out that, upon the evidence, it was for the jury to determine this issue in the light of all the circumstances. No doubt negligence could not be imputed to a person in the position of the fireman for assuming that the driver of a motor vehicle proceeding at a reasonable pace and who is aware of the presence of a train in the immediate vicinity of a level crossing will not act foolishly, and it would be quite wrong on such a set of facts and independently of any other circumstances to treat as negligent an omission on the part of such a person to act immediately. But in my view the learned trial judge's charge to the jury did not leave this course open to them. In my opinion there was no misdirection or failure to direct on this point; the difficulty, if there be one, is concerned with the question whether in the circumstances of this case the fireman was entitled to continue to make this assumption after he first observed the bus approaching the crossing. The question of the point of time at which a reasonable man, finding himself in the position of the fireman, should have apprehended that a dangerous situation had arisen, did not fall to be determined solely upon the evidence of what occurred or what was observed by the fireman after the train and bus came into the view of each other. No doubt if adequate warning of the train's approach had been given, the fireman would have been justified in assuming that Forbes was aware of its presence in the vicinity. But whether circumstances justifying such an assumption existed was itself a question for the jury. Again, Forbes claimed that his view of the approaching train, an event quite unusual at this crossing on Saturday afternoons, was impeded by the afternoon sun and there was some evidence to the effect that a locomotive whistle sounded some distance back from the crossing might easily be confused with whistles sounded near Horsham Station or on other railway lines approaching that point. I feel that all of this evidence was relevant to a consideration of what course a reasonable man in the position of the fireman would have adopted upon seeing the bus approaching. In these circumstances, I am of the opinion that the jury might well have concluded that the whistle should have been sounded at this point or that the brakes should have been applied in an endeavour to avoid the accident or minimise its consequences.

At a glance

Court

Decision date

Before

Source

Judgment (38 paragraphs)

Parties

Cited By (1)