This is an appeal from a judgment of the Full Court of New South Wales setting aside the verdict of the jury in favour of the plaintiff and entering judgment for the defendant. The action is one of negligence and arose out of a street accident in which the plaintiff's husband lost his life. The case for the plaintiff necessarily rests upon the evidence of the bystanders and the real difficulty which has given rise to these proceedings arises from the inability to obtain any precise evidence of why it was that the plaintiff's husband was himself unable to avoid the casualty which caused his death. The accident occurred in George Street near the place where Barrack Street runs into George Street. The tram-car which caused the death of the plaintiff's husband was bound in a southerly direction. The plaintiff's husband was first seen by the bystanders at or leaving the south-westerly corner of Barrack Street and George Street. He proceeded to cross the road more or less at right angles towards the other side of George Street. The tram-car in question had left the stop near Angel Place, the other side of Martin Place, and was proceeding towards King Street. It had gathered an even pace, but the evidence is not consistent as to what that pace was, various estimates having been given, as is not unusual, by the witnesses. The tram-car collided with the plaintiff's husband, who by that time had reached either the middle or the left band side of the tram-track upon which the tram was proceeding. In the accident the glass destination indicator on the tram was broken. There was some evidence that the near side of the tram-rail had been reached and the plaintiff's husband was seen on that side, so that he must have reached a position in the middle where the glass was broken or a little further towards the George Street easterly side.

The first question for consideration is whether there is not sufficient evidence to justify the jury in finding that the Road Transport and Tramways Commissioner's servant, the driver of the tram, was guilty of a want of care which was the effective or proximate cause of the accident. In my opinion there was abundant evidence. That evidence lies principally in the account which the driver himself gives of what he saw and did. He says that he did not see the plaintiff's husband until he was within three feet, until the accident was imminent and unavoidable, and it was then he put on his brakes and sounded the bell and attempted to stop the tram. It is said that this evidence is consistent with his having maintained an adequate general look out but having failed to observe, that is, take into his consciousness, the presence of the plaintiff's husband. The jury took the other view, namely, that his failure to see the plaintiff's husband was accounted for by his attention being attracted or turned away and that he was negligent. That such negligence was a proximate cause of the accident could not be disputed if that negligence were found. In the absence of a proper look out the plaintiff's husband was not seen; in the presence of a proper look out he would have been seen, and it is almost certain that, if he had been seen some distance away, the tram-driver would have been able to reduce his pace and the plaintiff's husband would have escaped injury.

The next question that emerges in cases of this description is whether the plaintiff's husband was himself guilty of a lack of care and thus contributed materially to the accident. That in substance means that he did not take reasonable care, and that if he had taken it, he would have avoided the consequence of the negligence presupposed on the part of the defendant. It is upon that question that the great difficulty in this case rests. The Full Court were of opinion that the circumstances of the accident establish that the plaintiff's husband did neglect that precaution which, if taken, would have avoided the consequence of the defendant's negligence, and that this neglect of precaution continued to such a stage that the accident was due to the joint negligence of the parties. The question for the Court is not whether in point of fact that is the correct solution of the casualty but what views the jury are at liberty to take of the matter. Once initial negligence is established on the part of the defendant, the burden of proof is upon the defendant to establish contributory negligence in the plaintiff's husband. In examining the question whether the verdict of the jury can be set aside on the ground that contributory negligence was conclusively proved, one must beware of substituting one's own opinion of the cause of the accident for those views which the jury are entitled to take. The verdict of the jury cannot be set aside and a contrary verdict substituted unless on the particular issues the party was entitled as a matter of law to have that verdict. The burden of proof being against the respondent, he must make out that there was no reasonable explanation of the conduct which the evidence shows consistent with the presence of due care on the part of the plaintiff's husband. In my opinion it was competent to the jury to refuse to find that he had been guilty of contributory negligence which was a proximate cause of the accident. It was open to them to suppose it was possible that he was keeping a proper look out in the street but that he miscalculated the speed of the tram and committed a mere error of judgment in relation to the pace of the tram. It was open to them to suppose as another hypothesis that he was distracted by the passage of the motor car in the opposite direction and took his attention away from the tram-car for sufficient time to put himself in jeopardy. I am not suggesting that these are the views which I personally take. In those circumstances one of the witnesses' views may have appealed to the jury and they may have thought that the driver, by retarding the tram, if he had seen the plaintiff's husband crossing the road, might have avoided the accident, and that it was from first to last his lack of caution in not keeping a look out which led to the final result. If the jury had thought that at some stage the plaintiff's husband had been guilty of contributory negligence, they still might have considered that that could have been avoided by due care on the part of the driver, if he had ceased to omit the precaution of looking out at some stage before it became impossible to diminish the speed of the tram. In those circumstances it appears to me that it is impossible to say that the jury was bound as a matter of law to find that contributory negligence was the effective cause of the accident, or the decisive cause of the accident if the rule of last opportunity is taken into account. The judgment of the Full Court proceeds upon reasoning, with which we are all familiar, which places the plaintiff's husband in this dilemma: either he did look and saw the tram, in which case to proceed would be negligent; or he did not look, in which case his failure to look was negligence. Passages were cited from Fraser v. The Victorian Railways Commissioners[1] and The Commissioner of Railways v. Leahy[2]. It must be remembered, in dealing with the observations of Sir Samuel Griffith C.J. in those cases, that they were observations on facts and do not profess to be laying down principles of law. He was dealing with what were the necessary deductions of fact to be made in those cases from the circumstances disclosed by the evidence. It will often be found that the mode of reasoning employed is applicable in dealing with questions of fact which must be submitted for decision by the jury. Less often will it be found applicable when the jury's verdict has passed against the defendant and the question is whether the verdict was open to the jury. An apparent dilemma is often found imperfect, and it is so in this case, because it omits more than one possible explanation. It omits, for instance, the view that the plaintiff's husband did see the tram but made an error of judgment in seeking to cross in front of it; further, it leaves out of account the possibility that, even if the plaintiff's husband was pursuing his way across the road without looking north at all, the tram-driver might have avoided the consequence of his proceeding in that way by the exercise of care if he had been keeping a look out. It is not a sufficient answer that the plaintiff's husband's negligence continued right up to the end, for this reason: the jury were at liberty, though not bound, to form the impression that he was the first to see the danger and that the evidence which says that he seemed to stand a moment before the oncoming tram in a state of danger, as if he had become confused, meant that, although he was the first to see the danger, he failed in quickness of decision. If the danger had also been seen earlier by the tram-driver, in these circumstances he might just have averted the collision.

For these reasons I am unable to agree with the judgment appealed from, and think that the appeal should be allowed.

I agree. It seems to me that this case belongs rather to the class of case represented by M'Lean v. Bell[3] than to that of Swadling v. Cooper[4] and his Honor the trial Judge was quite entitled, and indeed bound, to leave the issues to the jury. Further, I agree that there is ample evidence of carelessness on the part of the tram-driver in relation, first to the speed of driving, secondly to the keeping of a proper look out, and thirdly in relation to not sounding his bell. With regard to the deceased, I think it was open on the evidence for the jury to find that, at the most, he was guilty of a miscalculation which did not, in the circumstances, amount to such imprudence as to constitute carelessness or negligence at all. But, assuming that the jury might have thought deceased careless or negligent, I also think the evidence entitled the jury to come to this conclusion, that although the deceased was careless, the tram-driver, and he alone, had the opportunity, by driving carefully, to avoid all injury to the deceased. In these circumstances, the conclusions of fact being open to the jury, they should not have been disturbed by the Full Court. I therefore think that the appeal should be allowed.

Appeal allowed with costs appropriate to an appeal in forma pauperis. Judgment of the Supreme Court discharged. In lieu thereof, restore the verdict of the jury and enter judgment thereon for the plaintiff. Respondent to pay the costs of the appeal to the Full Court of the Supreme Court.

Solicitor for the respondent, F. W. Bretnall, Solicitor for Transport.

[1] [1909] HCA 5; (1909) 8 C.L.R. 54.

[2] [1904] HCA 30; (1904) 2 C.L.R. 54.