Hale v Victorian Railways Commissioners

87 C.L.R.] OF AUSTRALIA.

529

[H IG H COURT OF AUSTRALIA.]

HALE .A p p e l l a n t

;

P l a i n t i f f ,

AND

VICTORIAN RAILWAYS COMMISSIONERS'

R e s p o n d e n t s .

AND OTHERS

.............................................

D e f e n d a n t s .

FORBES AND ANOTHER. \ p p e l l a n t s

;

D e f e n d a n t s ,

ANU

HALE AND ANOTHER . .

R e s p o n d e n t s .

P l a i n t i f f a n d

D e f e n d a n t .

ON APJ>EAL FRO-M T H E SU PREM E COURT OF

VICTORIA.

New Trial— Mucarriage of justice— Misdirection— Action for negligence— Accident

H. C. 01? A.

at level crossing— Three heads of negligence relied on— Whether summing up

19.53.

defective with reference to matters of fact and evidence as to one hejid.

J I e l b o u r k k .

In an action for damages for injuries sustained in a collision a t a level crossing between a m otor bus and a tra in controlled by the servants of the Vietoi’ian

Feb. 16, 17 ;

S y d n e y .

Railways Commissioners, H. claimed th a t the commissioners were guilty of

M ay

8.

negligence on the ground, (1) because of the character and arrangem ent of

Dixon C.J., Williinns,

the crossing; (2) because the ti-ain failed to whistle or whistle adequately ;

(3) because the fireman on the tra in failed to e.xcrcise due care in the cir­

Webb,

Kitto and

cumstances. It was conceded tha t the ju ry might ])roj)erly have based

Taylor ,),I.

its verdict for the ])laintift' upon either the first or second of these heads of negligence. Ujjon the thii-d the evidence showed th a t by reason of the existence of a dwelling in the angle contained by the res[)ectivc lines of approach of the tra in and the bus, they did not become visible to each other until the tra in was about forty yards from the crossing and the bus about six ty yards from this point. The fireman gave evidence to the effect

VOL.

L.XXXVII.— 34

530 HIGH COURT

[1953.

H. 0 . OK A.tlia i he saw Uie bu.y when it was alioiit sixty yards from the crossing, travelling about twenty-five miles per hour when it commenced to reduce speed, and lie assumed th a t the bus would not a ttem p t to cross in front of the train

H alkbut would stof) as it came to the crossing.

'I’he driver of the bus did not,

V.

V ic t o r ia n however, hear or see the train until it got so close th a t an accident could not