Roeder v Commissioner for Railways (NSW) [1938] HCA 36

Roeder v Commissioner for Railways (NSW) [1938] HCA 36 - HCA 1938 case summary — Zoe

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arm was broken. The jury found a verdict for the defendant, the Commissioner for Railways. The two issues at the trial were sub- stantially («) whether the plaintiffs arm was struck by some door or other object belonging to the passing train, and owing to the negligence of the defendant's servants, (6) whether the plaintiff was disentitled by contributory negligence from recovering. A general verdict was taken, and no one can tell whether the jury found against the plaintiff on the first or on the second issue, or on both. The question, what struck the plaintiff's arm, could be answered only by inference from circumstantial evidence. The case for the commissioner was that all the doors of the passing train, which was a goods or mixed train, were shut, that although the louvre doors of some waggons might, if open, have reached across to the train by which the plaintiff was travelling, these vans had passed before the plaintiff was hit; that the doors of the brake van would not reach across even if open; that conceivably some coal might have fallen from a coal hopper, but that none was found on the track. Clearly the jury were at liberty to infer that the arm was injured by a door of the passing train or by some object connected with that train which should not have been able to strike him if due care had been exercised by the defendant's servants in shutting doors and seeing that the passing train was free from projections. It is difficult to discover any other reasonable explanation of the accident unless there was some projection from the passing train or something emanating from that train. It should be added that there were no passengers carried by the passing train. I feel no doubt that the trial judge was right in leaving to the jury the issue whether the plaintiff was struck by something in connection with the passing train owing to the negligence of the defendant's servants. The contributory negligence imputed to the plaintiff consisted in his having his elbow extended through the window by which he was sitting in the railway carriage. The plaintiff in the witness box was reluctant to admit that it projected at all, but it is evident from his injuries that he must be wrong. His appeal to us is based upon the contention that the legal significance of the projection of his arm was presented by the learned trial judge to the jury in a way which would mislead them and was erroneous. The passages in his

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summing up dealing with the question were discussed and re-discussed during the hearing of this appeal. The summing up, so far as it relates to the question, must be read as a whole, and criticisms of the accuracy of particular statements or sentences should not receive effect. But it must be remembered that the cumulative effect of the restatement of the same or similar sets of ideas is the chief source of guidance upon which a jury relies, and if the impression - which would be created is one likely to put a jury upon the wrong - track, if that expression may be used, or to militate against the ! probability of their finding the right track, it will be enough to - warrant a new trial, particularly where the verdict is not such as - upon the particular issue appears to be demanded by the evidence, - Now the question how far the protrusion of an arm from a railway carriage window should disentitle its owner from recovering damages if a negligent act or omission on the part of the railway servants leads to its being struck is one of some nicety. According to the decision of this court in Cashmore v. Chief Commissioner for Railways and Tramways (N.S.W.) (1), it is a question for the jury under the head of contributory negligence. What the jury has to decide is whether in the given circumstances a man paying ordinary reason= able regard to his own safety would not have had his elbow out. As is stated by Isaacs J. (as he then was) in Cashmore's Case (2), if you travel by a train you are entitled to rely on the commissioner taking due care for the safety of the train from all danger attending the journey. The standard of reasonable care is fixed by the : common habits of mankind. This applies both ways. Thousands - of people travel with their elbow sticking out of the carriage window - to some extent. This, I suppose, I am entitled to know from the observation permitted even to a judge. It is a consideration to be weighed in deciding that it is negligence to do it. No doubt also it is one of the many reasons for keeping doors on the off-side of a train closed. What strikes me as the matter for the consideration of the jury was whether, having regard to the duty of the commis- sioner's servants to look after the doors and other possible projec~ tions of passing trains; to the tendency of passengers to project - their arms ; to the nature of the bar across the window; and to

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As the authorities stand, I do not think that we are able to deal with the question as one upon which the definition of the commis- sioner's duty is decisive. That duty must be taken simply as a general duty of care to avoid occasioning to passengers or others in the course of the commissioner's operations harm of a kind against which it is reasonable to guard. The passenger, on his side, is entitled to rely on the fulfilment of this duty, and it does not amount to negligence on his part if he takes no special precautions against dangers which the observance of due care on the part of the servants of the commissioner would exclude altogether or so reduce that the risk of their occurrence might reasonably be encountered. But skill and care cannot always prevent dangers arising, and there are some which, either because of the frequency with which they happen even where there is no neglect, or because of their seriousness, the average prudent man would himself exercise care to avoid. The question is one of fact whether a given risk is so great in kind or frequency that it is unreasonable to do any act involving exposure to it. In considering the question, the ordinary habits and conduct of reasonable men in like circumstances must be taken into account. It is the application of this principle to the case of a passenger who puts his arm or some other part of his body beyond the line of the carriage wall which makes it necessary to submit the question whether he is guilty of contributory negligence to a jury. For notwithstanding that a passenger is entitled to rely upon the exercise by the commis- sioner's servants of proper care to prevent objects falling or projecting from a train so as to be a source of danger to those travelling in other trains and a failure to take precautions against the consequences of a breach of duty on their part cannot be imputed to him as con- tributory negligence, yet the danger of things projecting or falling may be considered one that cannot be altogether avoided by care on the part of the commissioner's servants and is so great or so serious that ordinary prudence requires a passenger to exercise care on his side in order to guard against injury from passing trains. I under- stand this to be the bearing of the observations of Zsaacs J. in Cashmore's Case (1). A court can only pronounce upon the question.

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Judgment (149 paragraphs)

Cases Cited (1)

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