Fraser v Victorian Railways Commissioners - [1909] HCA 5

THE VICTORIAN RAILWAYS COMMIS-

RESPONDENTS. SIONERS

DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF Negligence - Level crossing on railway-Evidence-Burden of proof-Nonsuit,

In an action for negligence where the evidence called for the plaintiff is

MELBOURNE E,

equally consistent with the wrong complained of having been caused by the March 2, 3, 8.

negligence of the plaintiff and with its having been caused by the negligence of the defendant, the case should not be left to a jury.

Where a railway crosses a road at a level crossing without gates and an approaching train is visible from all material positions to persons about to pass over the crossing, although it is the duty of the owners of the railway to take reasonable precautions to prevent such persons from being injured by trains, it is equally the duty of such persons to look for approaching trains, and they are not excused from looking by the omission of precautions on the part of the owners of the railway.

A regulation issued by the owners of a railway, directing their engine-drivers to sound a whistle when approaching a level crossing without gates, is evidence that the sounding of a whistle is a reasonable precaution to be taken in such circumstances, and the omission to sound a whistle is evidence of negligence.

In an action in a Vietorian County Court by the representative of a man who had been killed by a train at a railway crossing against the Victorian Railways Commissioners, alleging that the death of the deceased had been caused by the defendants' negligence, at the close of the plaintiff's case the plaintiff was nonsuited.

8 CLR 55

Held (Isaacs J. dissenting) that, the evidence being equally consistent with the death of the deceased having been caused by the omission of the engine- driver to sound a whistle, and with its having been caused by the negligence of the deceased in that he either did not look or, if he did look, voluntarily undertook the risk of crossing, the plaintiff was properly nonsuited.

Wakelin v. London and South Western Railway Co., 12 App. Cas., 41, applied.

Dublin, Wicklow and Wexford Railway Co. v. Slattery, 3 App. Cas., 1155; Smith v. South Eastern Railway Co., (1896) 1 Q.B., 178, and Toronto Railway Co. v. King, (1908) A.C., 260, distinguished.

Decision of the Supreme Court of Victoria affirmed.

APPEAL from the Supreme Court of Victoria.

An action was brought in the County Court at Melbourne by Bridget Fraser, administratrix of James Alexander Fraser, de- ceased, against the Victorian Railways Commissioners, alleging that by reason of the negligence of the defendants the deceased was killed, and claiming £1,000 damages. The particulars of demand alleged that the deceased was killed by a train running into the waggon which he was driving across a level crossing on the defendants' railway, and among the acts of negligence alleged were the omission to keep the crossing lighted, and the omission of the engine-driver to sound the…

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.

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Details

Case: [1909] HCA 5
Decision Date: 8 March 1909

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria, which had affirmed a nonsuit granted in the County Court. The appellant, Bridget Fraser, as administratrix of the estate of James Alexander Fraser, deceased, had sued the Victorian Railways Commissioners for negligence, alleging that the deceased's death, caused by a train colliding with his wagon at a level crossing, was due to the Commissioners' negligence. The alleged negligence included the failure to light the crossing and the engine-driver's omission to sound a whistle.

The legal issues before the High Court were whether there was sufficient evidence of negligence on the part of the Victorian Railways Commissioners that caused the deceased's death, and whether the evidence was equally consistent with the deceased's own negligence. Specifically, the Court had to determine if the omission to sound a whistle at the level crossing, despite a departmental regulation requiring it, constituted negligence that caused the accident, and if so, whether the deceased's own conduct in crossing the railway line was also negligent, thereby preventing the plaintiff from succeeding.

The majority of the High Court, applying the principles from *Wakelin v. London and South Western Railway Co.*, held that the plaintiff had failed to establish that the Commissioners' negligence was the cause of the accident. The Court reasoned that while the omission to sound the whistle might be evidence of negligence, the circumstances of the accident were equally consistent with the deceased's own negligence in failing to look for the approaching train. Given that the train was visible from a considerable distance and the deceased had a duty to look for approaching trains, his failure to do so, or his decision to cross despite seeing the train, would constitute negligence. Therefore, as the evidence did not point more strongly to the defendants' negligence as the cause of death than to the deceased's own negligence, the plaintiff could not succeed.

The appeal was dismissed, affirming the decision of the Supreme Court of Victoria.

Orders