South Australian Railways Commissioner v Thomas
[1951] HCA 48
•20 September 1951
AppI Walker \
Australian
Natiotuil
Railways ^
Conwussion
(1993) 18 MVR'69
84
HIGH COURT
[1951.
[HLGH COl’RT OF AUSTRALIA.]
THE SOUTH AUSTRALIAN
RAILWAYS
COM M ISSION ER..............................................
A p p e l l a n t
D e p e n d a n t ,
AND
THOMAS AND ANOTHER
R e s p o n d e n t s .
P l a in t if f s ,
ON APPEAL FROM THE SUPREME COURT OF
SOUTH AUSTRALIA.
H. C. OF A. Negligence—Contributory negligence—Railway level crossing—Collision between train
1951. and motor car—No warning devices at crossing— Warning by lights on engine and whistle—Duty of Railways Commissioner.
Ad e l a id e ,
A motor car, crossing a railway line at a suburban crossing, at night, was
Sept. 18, 19,
20 . struck by a train. The driver of the car, which was noisj ̂ in low gears, stopped a short distance before reaching the crossing, to look for approaching
Dixon,
trains.
He then proceeded in first gear at about six or seven miles per hour,
Williams and
K itto
J J .
looked again for trains, changed into second gear, and accelerated over the last few yards. The engine of the train carried a head lamp and a side lamp. Owing to a curve in the line, light from the carriage windows was not visible to a person near the crossing until the train was almost opposite to him. A street light and two other bright lights were situated near another crossing, in the direction from which the train approached, a short distance from the crossing where the accident occurred. The engine whistled as it approached.
| Trains passed over the line frequently. Traffic along the road was substantial. |
No warning devices were installed at the crossing.
Held, that the appellant had provided insufficient means of giving warning of the approach of trains and, accordingly, had failed to do everything that was reasonably necessary to secure the safety of persons using the crossing.
The nature of a Railwa3̂ Authority’s duty to give warning at a level crossing, discussed.
Decision of the Supreme Court of South Australia {Ligertwood J.) affirmed.
84 C.L.R.] OF AUSTRALIA.
85
A p p e a l from the Supreme Court of South Australia.
C. of A.
The plaintiffs in an action in the Supreme Court of South A us- Austraha claimed damages against the defendant for injuries and damage to property which they alleged were caused by his negli- Au str a lia n
R a ilw a y s
gence. They alleged
{inter alia), (a) tha t the railway crossing at
Com m is
which the accident occurred was dangerous, (b) that at all material
s io n e r
V.
times the defendant knew that the crossing was dangerous, and
T hom a s .
(c) tha t the defendant negligently failed to provide a t the crossing any sufficient or proper warning to road users and negligently failed to provide proper lights on his locomotives or lights which could have been readily distinguished from certain other lights in the vicinity.
The defendant denied neghgence and alleged tha t the accident was due solely to the negligence of the plaintiffs or, alternatively, tha t they were guilty of contributory negligence.
The accident occurred at about 9.40 p.m. on 8th January 1950 at a level crossing where May Street, Alberton, crosses the Adelaide- Henley Beach railway line.
The plaintiffs approached the crossing in a 1924 model tourer car, which was driven by the male plaintiff, his wife (the female plaintiff) being a passenger in the front seat. According to their case, the male plaintiff stopped his car when it was about twenty- seven yards from the railway line. He looked to the right and then to the left, and he also asked his wife whether all was clear on her side. He then went on in first gear at about six or seven miles per hour. He again looked to his left and again inquired of his wife. He then changed into second gear and, when about thirteen yards from the line, accelerated. A train, which had been approaching the plaintiff’s left, struck the car.
The engine carried a head lamp and a side lamp. A short distance from the May Street crossing, the line crossed the Port Road, at which crossing there was a street light and near which there were two other bright lights. There was evidence that the presence of these other lights sometimes made it difficult to distinguish the lights of approaching trains. Ligertwood J. found that, considered as a warning of the approach of a train, the lighting of the type of engine concerned in the accident was inadequate. Owing to a curve in the line, light from the carriage windows was not visible to a person near the crossing until the train was almost opposite
to him.
The engine whistled when approaching the crossing.
There was substantial road traffic along May Street, and frequent train traffic on the railway. No warning devices were installed at the crossing.
80 HIGH COURT
[1951.
IL C. OF A. judge found that tlie defendant was negligent in failing
to provide wai'iiing devices at tlic crossing and tliat tiie plaintiffs 'Fue S outh weT'o not guilty of cont]'il)utory negligence, and he gave judgment
A ustralian f o r the ])la,intirfs.
R a i l w a y s
C o m m i s From this decision the defendant a])])ealcd to the High Court.
s i o n e r
V.
'I’ilOMAS.A. J. Hannan K.C. (with him K. J. Ilealy), for the appellant.
The trial judge, having found the train had given warning of its approach by whistling, should have dismissed the action. The driver of the train was under a duty to give adequate warning of the approach of the train and then he was entitled to proceed on the basis that road-users would use reasonable care for their own safety and give him right of way : Baker v. Victorian Railway Commissioners (1) ; Executor Trustee and Agency Co. of B.A. Ltd. V. Insurance Office of Australia (2). I t is not necessary for the appellant to show that the engine whistle was heard by the motorist or that he had time to act on i t ; Grand Trunk Railway Co. v. McAlpme (3). The appellant was under no obligation to give warning by means of flashing lights or bells. The respondents were guilty of contributory negligence because, by the exercise of reasonable care, they could have heard the whistle and seen the train : Commissioner of Railways v. Leahy (4); Fraser v. Victorian Railivays Commissioners (5). The male respondent having made his wife his agent to look for the train, is identified with her. She should have seen the train when she looked for it. Obligation to look implies obligation to look at the relevant time : Municipal Tramways Trust v. Wallman (6).
T. E. Cleland (with him 31. E. E. Cleland), for the respondents. The road-user ajiproaching May Street crossing has duties in respeet of adjoining roads, as well as in respect of trains. He cannot perform all duties concurrently ; Nance v. British Columbia Electric Railway Co. Ltd. (7). Whistle and engine lights were not sufficient to give adequate warning at this crossing. The respondents exercised all due care in approaching the crossing. The decision is largely one of fact and should not be disturbed by an appellate Court.
A. J . Hannan K.C., in reply.
Cur. adv. vult.
(1) (1949) V.L.R. 85.
(5) (1909) 8 C.L.R. 54, particularly
(2) (1949) S.A.S.R. 337, at p. 342.
at pp. 60, 01.
(3) (1913) A.C. 838. at p. 844.(6) (1920) «.A.L.R. 325, at p. 332.
(4) (1905) 2 C.L.R. 54, particularly
(7) (1951) A.C. 601.
at p. 00.
84 C.L.R.] OF AUSTRALIA.
87
T he Court delivered the following written judgm ent:—
H. C. o f A.
This is an appeal from a judgment of LigeHwood J . awarding damages for personal injuries to Mr. and Mrs. Thomas, who were
south
hurt in an accident at a level crossing.
The accident took place A u st r a l ia n
R a il w a y .s
on 8th January 1950 a t about twenty minutes to ten at night.Co m m is
The level crossing is where the railway from Adelaide to Henley
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V.
Beach crosses a street called May Street. May Street runs from T h o m a s .
the Port Road and crosses the railway at an angle of seventy
Sept. 24.
degrees and at a point south-west of the level crossing by which
the train passes over the Port Road.
The plaintiffs reside in a house immediately on the southern side of the level crossing and are therefore very familiar with the locality. On the night in question they were driving home from the north in a Dodge car. I t was a 1924 model tourer. As they crossed the line a train coming from the north-east, that is from Adelaide, hit the car and as the result Mrs. Thomas was severely injured and Mr. Thomas also suffered injury. Mr. Thomas was driving and therefore was upon the side of the car furthest from the approaching train. According to the plaintiffs’ case he stopped the car when it was about twenty-seven yards north of the railway line. He looked to his right to see that no train was coming from Henley Beach. He then looked to his left. He asked his wife whether all was clear on her side. He had seen nothing. She replied “ Yes, it is all right here.” He then went on in first gear
at about six or seven miles an hour.
Again he looked to his left
and again asked his wife whether all was clear on her side. She replied tha t it was. He then went into second gear and when he was about thirteen yards from the railway line he accelerated. Suddenly, when the front of the car was practically on the line, his wife called o u t : “ There is a train.” The train then hit them and he became unconscious. The wife suffered concussion and was unable to remember anything of the accident.
Ligertwood J . found tha t the crossing was dangerous at night time and should have been provided with warning devices such as flashing lights and bells. In arriving at this conclusion he took into consideration the inadequate lighting of the engine. Neither of the plaintiffs had heard or seen the train but his Honour found that in fact the fireman did sound the whistle before reaching the crossing at the place marked by a whistle board. Four witnesses who were in the vicinity at the time said that the train did not whistle, which must mean that they did not hear it.
The railway line straightens out as it approaches the May Street crossing from the north-east after a curve of fifty chains radius.
88 HIGH COURT
[1951.
H . C. OF A.
On either side of the railway there is a road running parallel with
1!)51.
it.
These roads of course cross May Street with the railway line.
T his S ouT ii
The traffic carried by the railway line is not inconsiderable. Trains
A u str a lia n
R a ilw a y s drawn by steam engines as well as rail cars pass over the line
Com m isfrequently. The road traffic along May Street, while apparently
s io n e r
not heavy, is substantial and it might be described as a frequently
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used street.
On the other side of the Port Road in the vicinity of
' r i lO M A S .
Dixon J.
the crossing is a large factory showing lights, and these could be
Williams J. seen from May Street crossing. At the Port Road crossing bells
Kitto J.
were rung as the train passed and in favourable weather conditions these could be heard at the May Street crossing. Otherwise vehicles crossing the line at May Street had no warning of the approach of a train from Adelaide except the noise of the train and the whistle and their ability to see its lights. The train by which the plaintiffs were run down was a steam passenger train. The engine carried a head lamp and a side lamp for the purpose of indicating its destination. A good deal of evidence was given as to the character of these lights, particularly of the headlight, and also concerrdng the audibility of the whistle. On behalf of the appellant commissioner it was also maintained that the lights from the carriages of the moving train could be seen as it came round the bend. As to the last, Ligertwood J. said that, having had the advantage of a view of the approaching train at night, he accepted the evidence of those witnesses who said that to a person near the crossing no light from the carriages would be visible until the train was almost opposite to him. His Honour was of opinion that when the engine whistled it was quite likely that the noise did not penetrate the interior of the plaintiffs’ vehicle and, further, that at that time Mr. Thomas had started in first gear, which would create a noise inside such an old car. Even if he were in second gear the noise of the gears was likely to be considerable. His Honour’s finding concerning the lighting of the engine is expressed as follows :—“ Having regard to this general evidence, I think it is proper to take into account evidence of the plaintiffs and their witnesses, that on particular occasions they found it difficult a t the crossing to pick out and distinguish the light of an approaching train. The difficulty was increased by the presence of a street fight on the Port Road and of two bright fights in Holdens Motor Body Works fronting the East side of the Port Road, which tended to confuse the observer. On the whole of the evidence, I find that considered as a warning of the approach of a train, the fighting of F class engines in general was inadequate.”
84 C.L.R.] OF AUSTRALIA.
89
H. C. OF A.
In support of the appeal from this decision it was contended on the part of the appellant commissioner tha t his duty of care was
1951.
discharged by illuminating the train so tha t it could be seen by a T h e Sou th
careful and attentive driver about to cross and ensuring that it
A u str a lia n R a ilw a y s
whistled audibly a t a sufficient distance from the crossing.
Com m is
s io n e r
In considering whether adequate warning was provided at a level crossing over a public road all the circumstances of the locality
V.
T hom a s .
and of the traffic passing over it and the conditions prevaihng at
Dixon J.
the relevant time must be taken into consideration : Alehin v.
WiUiams J.
K itto
J.
Commissioner for Railways (1). The duty of the commissioner is to do everything which in the circumstances is reasonably necessary to secure the safety of persons using the crossing : Cliff v. Midland Railway Co. (2); Ellis v. Great Western Railway Co. (3) ; Liddiatt V. Great Western Railway Co. (4). This must include a duty to give reasonable warning of the approach of a train where the commissioner does not provide gates which are closed when a train is approaching. That duty is not fulfilled by providing means which would enable persons of acute vision and hearing exercising the most anxious care to avoid injury. The fact that all sorts and conditions of people use the highway must be taken into account, and, whilst the commis sioner is not required to protect against their own carelessness people who proceed without any regard to their own safety, it is his duty to take every reasonable precaution to ensure that the level cross ing will be safe for the members of the public generally who act with due care while exercising their rights of passing over it.
We thought it proper, having heard the appeal, to follow the course taken by the learned judge and view the locality as a train passed over it a t night. This view has enabled us to apply the evidence contained in the transcript with better understanding than would have been possible from a study of the plan. We find ourselves in agreement with the opinion of the learned judge that in the conditions prevailing at the time of the accident the level crossing was dangerous and that the appellant commissioner provided insufficient means of warning persons intending to cross of the approach of such a train as injured the plaintiffs. Since the accident warning bells have been installed and conditions are not now the same. But in the conditions which existed a t the time of the accident as described by the witnesses and as disclosed by the view which we had of the locality, we think tha t the lighting of the train and the whistle were quite insufficient reasonably to
(1) (1935) 35 S.R. (N.S.W.) 498, at
(3) (1874) L.R. 9 C.P. 551, at p. 555.
p. 602 ; 62 W.N. 156.
(4) (1946) K.B. 54.5, at p. 550.
(2) (1870) L.R. 5 Q.B. 258, at p. 261.
90 HIGH COURT
[1951.
H. C. OF A.
ensure that those about to pass over the crossing were aware of
1951.the approach of the train. The noise of the train could not neces sarily be heard, nor could the train always be clearly seen as it
T h e
S outh
Au str a lia n approached.
In these circumstances the failure on the part of the
R ailw a y s
Com m ishusband and wife to see or hear the approaching train, having
| sio n e rregard to the attempts they made to safeguard themselves, does |
V.
not in our opinion imply contributory negligence on their part and we agree in the finding of the learned judge upon this issue. In our opinion the appeal should be dismissed with costs.
T hom as.
Appeal dismissed with costs.
Solicitor for the appellant, A. J. Hannan, Crown Solicitor for South Australia.
Solicitors for the respondents, Cleland, Teesdale Smith & Harris.
B. H.
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