Commissioner for Railways v Dowle - [1958] HCA 15

COMMISSIONER FOR RAILWAYS DOWLE

RESPONDENT. PLAINTIFF, Negligence-Railway level crossing-Open crossing with halt signs-Collision between

train and motor vehicle on crossing-Death of driver of motor vehicle-Adequacy of precaution taken at crossing-Contributory negligence-Motor vehicle stopped at halt sign before proceeding to cross railway line-Inference whether deceased had taken reasonable precautions-Question for jury-Open to jury to negative contributory negligence.

D. was killed when a four ton truck which he was driving in a southerly direction came into collision in daylight with a train travelling in a south- westerly direction at a level crossing. Between the roadway and the railway there was no obstruction to vision, and both the roadway and railway in the vicinity of the level crossing ran in a straight line. The deceased's truck was fitted with a hopper which constituted an obstruction to his seeing behind him by means of a rear-vision mirror in the cabin and at the time of the colli- sion the truck was heavily laden with blue metal. The deceased, according to the evidence of the sole witness to the accident who was some seventy yards away to the west, stopped his vehicle at a halt sign situated on the eastern side of the road on which he was travelling and then proceeded into the crossing. When the rear of his truck was nearly across the eastern line it was struck by a train coming from the north, and as a consequence the truck was overturned and the deceased died from injuries thus sustained. The witness also testified that the train had whistled, and that at the time of the accident a westerly wind was blowing. The crossing was close by a race-course and on race days was much used by traffic and was controlled by a flag-man employed by the commissioner to direct the traffic. The day on which the accident occurred was not a race day. In an action brought by D.'s widow under the Compen- sation to Relatives Act 1897-1946 against the Commissioner for Railways the defendant denied negligence and alleged that the deceased had been guilty of

99 CLR 354

contributory negligence, in that he either failed to look or that having looked and seen he took the risk. At the trial there was some evidence from a number of previous accidents that the crossing had proved a source of danger but in summing-up the trial judge reduced the question of negligence to the availa- bility of a flag-man and the possibility of his use at the crossing. The jury found a general verdict for the plaintiff, from which the defendant appealed seeking the entry of a verdict in his favour.

Held, that upon the evidence it was open to the jury to find negligence on the part of the commissioner and negative contributory negligence on the part of the deceased, and accordingly the verdict of the jury ought not to be

The duty of railways commissioners in respect of level crossings discussed. The South Australian Railways Commissioner v.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Commissioner for Railways v Dowle

Details

AGLC: Commissioner for Railways v Dowle [1958] HCA 15
Case: [1958] HCA 15
Decision Date: 18 April 1958

CaseChat Overview and Summary

The Commissioner for Railways appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales (Full Court) which had dismissed an appeal from a jury verdict. The jury had found in favour of the plaintiff, Rita May Dowle, the widow of Henry Maxwell Dowle, who had died when his truck collided with a train at a level crossing. The Commissioner denied negligence and alleged contributory negligence on the part of the deceased.

The legal issues before the High Court were whether it was open to the jury to find that the Commissioner was negligent in its control of the level crossing and whether it was open to the jury to find that the deceased was not guilty of contributory negligence. The Commissioner sought to have the jury's verdict set aside and a verdict entered in its favour.

The Court reasoned that the character of the level crossing, including its acute angle to the road, the lack of obstruction to vision between the road and the railway, and the potential for significant traffic on race days, necessitated special care. The Court affirmed the duty of railway commissioners to take all reasonably necessary steps to ensure the safety of persons using a crossing, including providing reasonable warning of approaching trains where gates are not used. The Court found that the evidence, including the deceased's truck's construction which obstructed rear vision and the potential impact of wind on the train's whistle, supported the jury's inference that the deceased may have attempted to look for approaching trains and that the Commissioner's precautions were insufficient. The Court also held that the dilemma presented regarding contributory negligence – that the deceased either did not look or looked and took the risk – was not a conclusive one, and it was open to the jury to infer that the deceased had taken reasonable precautions.

Accordingly, the High Court dismissed the appeal, upholding the jury's verdict that the Commissioner was negligent and that the deceased was not contributorily negligent.

Orders