to recover. Where a train was hired by a society, whose secretary sold a ticket to the plaintiff, it was held that this was evidence that the plaintiff had become the company's passenger (o). CH. XV. s. 3. Onus on pas prove In order to render the company liable for negligence, it is necessary to give affirmative proof of negligence on their part, and it is not sufficient merely to prove the occurrence of an senger to accident and rely upon that as primâ facie evidence of negligence. negligence. In some cases indeed, res ipsa loquitur, the accident is of such a nature that negligence may be presumed from the mere occurrence of it (p). But when the balance is even, the onus is on the party who relies upon the negligence of the other to turn the scale (q). In all cases of negligence, the contributory negligence of the Contributory plaintiff will disentitle him to recover. That is, if the plaintiff negligence. omit to take such ordinary care as would have avoided the consequences of the negligence of the company or their servants, the liability of the company for such negligence is extinguished. And a master cannot recover from a third person for damage which has arisen through his own servant's negligence ("). It is not, however, sufficient, in order to exempt the company from respon. sibility, to show that the party injured did by his own act contribute to the injury, but it must be shown that he did not use ordinary care to avoid the consequences of the negligence of the company (s). Whether or not he did use ordinary care would be a Burden of question for a jury (t), the burden of proof of contributory negli- proof. gence being always upon the company (u). He is not identified L. & S. W. R. with the driver of his own train so as to bear the consequences of Co. such driver's contributory negligence (x). Wakelin v. risk. It is a defence that the plaintiff voluntarily incurred the risk Voluntary which led to his injury with a full knowledge of it, but both his incurring of will and knowledge are questions of fact, which must be very clearly proved for the company to avail themselves of it (y). (0) Skinner v. London, Brighton and South Coast Rail. Co. (1850), 5 Ex. 787. (p) See Bird v. Great Northern Rail. Co. (1858), 28 L. J., Ex. 3. (q) Toomey v. London, Brighton and South Coast Rail. Co. (1857), 3 C. B., N. S. 146; Cotton v. Wood (1860), 29 L. J., C. P. 333; Tattan v. Great Western Rail. Co. (1860), 29 L. J., Q. B. 184. (r) Pardington v. South Wales Rail. Co. (1856), 26 L. J., Ex. 105; Ellis v. London and South Western Rail. Co. (1857), 2 H. & N. 424. (s) Butterfield v. Forrester (1809), 11 Fast, 60. And see Clayards v. Dethick (1848), 12 Q. B. 439. (t) Walton v. London, Brighton and South Coast Rail. Co. (1866), 1 Harr. & Ruth. 424; Hogan v. South Eastern (u) Wakelin v. London and South (x) The Bernina (1888), 13 App. Cas. (y) Osborne v. CH. XV. s. 3. The contributory negligence of a child has the same effect of disentitling him to maintain an action as the contributory negligence of an adult (z). And a child is deemed to be so identified Passengers) with the person in charge of him, that the contributory negligence of such person disentitles the child from recovering damages (a). Child. Receipt in full for compensation. False claims. Amount of damages recoverable. Phillips v. London and South Western Rail. Co. Lord Campbell's Act. Liability for negligence notwithstanding death of party injured. It is common for railway companies to compromise claims by injured passengers at an early date, and the effect of such compromises is not unfrequently disputed. A "receipt in discharge of claim in full" is not conclusive, so as to preclude the passenger from suing the company for further compensation (b). If the claim should be fraudulent from the fact of the plaintiff not having been present at the accident in respect of which he claims damages, evidence of an admission by the plaintiff that he was not present is clearly admissible; and so is evidence generally of an admission by the plaintiff that he has a bad case (c). In calculating the damages, the jury are left very much at large, the proper direction to them being that they are to give not a perfect compensation, but, considering all the circumstances, to give a fair amount as compensation for pecuniary loss and bodily suffering. In estimating the compensation due to a professional man for pecuniary loss, deduction should be made for contingencies, such as loss of health, &c., by reason of which his professional income might have fallen off, but not on the ground of his having a large private income. "Special fees" may be taken into account. Such seems to be the result of Phillips v. London and South Western Rail. Co., in which the plaintiff was a London physician earning between 6,000l. and 7,000l. a year, and having a private income of about 3,500l. The case was twice fully discussed by the Court of Appeal. On the first occasion (d) the jury having awarded 7,000l., the Court granted a new trial for inadequacy of damages. On the subsequent occasion (e), the jury having awarded 16,000l., the Court refused a new trial for excess. The responsibilities of railway companies as carriers of passengers were greatly extended by Lord Campbell's Act, 9 & 10 Vict. c. 93 (f). Sect. 1 enacts, that whenever the death of a (a) Waite v. North Eastern Rail. Co. (child of five years old in charge of grandmother) (1858), E. B. & E. 719, Ex. Ch. And see Singleton v. Eastern Counties Rail. Co. (1859), 7 C. B., N. S. 287. (b) Lee v. Lancashire and Yorkshire Rail. Co. (1871), L. R., 6 Ch. 527. See also Stewart v. Great Western Rail. Co. (1865), 2 De G., J. & Sm. 319; Roberts v. Eastern Counties Rail. Co. (1859), 1 F. & F. 460; Rideal v. Great Western Rail. Co. (1859), 1 F. & F. 706. (c) Moriarty v. London, Chatham and Dover Rail. Co. (1870), L. R., 5 Q. B. 314. (d) Phillips v. London and South Western Rail. Co. (1879), 5 Q. B. D. 78. (e) Phillips v. London and South Western Rail. Co. (1879), 5 C. P. D. 280. (f) See this statute, and its amending Act, 27 & 28 Vict. c. 95, Chitty's Statutes, tit. "Executors and Administrators." CH. XV. s. 3. (Carriage of person is caused by such a wrongful act as would (if death had not ensued) have entitled the party injured to recover damages in respect thereof, in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, although the death be caused under such circumstances as amount in law to felony. By sect. 2 every such action Action by is to be for the benefit of the wife, husband, parent, and child (g) of the deceased person, and brought in the name of his executor or administrator (h). The statute gives an action to the representatives of a person killed by negligence, only when, had he survived, he himself, at the common law, could have maintained an action against the person guilty of the alleged negligence (i). Therefore the contributory negligence of the deceased (k), or compensation paid to him in his lifetime (1), are equally an answer to an action by the representatives under the statute. executor. Representa tives have no greater right of action than deceased. Damages con fined to pecuniary The jury, in assessing damages under this statute, are confined to injuries of which a pecuniary estimate can be made, and cannot take into consideration mental suffering occasioned to survivors injuries. by the death of their relative (m). (f) Of Time Tables and Unpunctuality. Mere granting imposes no duty to start definite time. of ticket a train at a Railway companies are under no obligation to issue time tables. And it has been expressly held, that the mere granting of a ticket imposes on a railway company no duty to have a train ready to start at a definite time (n). But in the exercise of their business as carriers, it has long been the universal practice of the companies to issue and publish time tables applicable to their passenger trains, and also for the purposes of through traffic to publish the time tables of other companies. The issue of such time tables amounts to an express contract with the public. Where no time tables are issued, the companies as carriers are under the implied common law obligation to deliver in a reasonable time. The cases upon this subject are few, but important. Contract for through train. The two leading ones are Denton v. Great Northern Rail. Co. (0), (g) "Child" includes a child en ventre sa mère, The George and Richard (1871), L. R., 3 Ad. & Ec. 466, but not an illegitimate child, Dickinson v. North Eastern Rail. Co. (1863), 33 L. J., Ex. 91; Re Wilson (1865), 35 L. J., Ch. 243. (h) If there is no executor or administrator, or if no action is brought by him within six months of the death, the action may be brought in the name of the persons beneficially interested. Vict. c. 95, s. 1. 27 & 28 (i) Senior v. Ward (1859), 1 Ell. & Ell. 385; Haigh v. Royal Mail Steam Packet (k) Senior v. Ward, ubi supra; Tucker (m) Blake v. Midland Rail. Co. (1852), (n) Hurst v. Great Western Rail. Co. (1865), 19 C. B., N. S. 310. (0) Denton v. Great Northern Rail. Co. (1856), 5 E. & B. 860. Railway Companies us Carriers CH. XV. s. 3. in which it was held, that the publication of time tables amounts to a contract by the publishing company that not only their own trains but the trains of other companies will run in conformity (Time Tables therewith; and Le Blanche v. London and North Western punctuality). Rail. Co. (p), in which it was held by the Court of Appeal "Ensurement that the usual positive promise of a time bill "to pay every of punctuality." and Un Personal in attention to ensure punctuality" overrides the usual negative words declining responsibility for delay; but if the promise be broken, the company is not therefore liable for the costs of a special train taken by the passenger. Personal inconvenience has been held to be a subject of damage. convenience. In a case where the train of the defendants took the plaintiff, with his wife and two children, in another direction than that indicated by their time tables, it was held that the plaintiff might keep a verdict for 81. in respect of having to walk five miles home at midnight, but that damages awarded in respect of the illness of his wife arising from the walk were too remote (q). Posting expenses. Failure to keep business engagements. Hotel expenses. Where the plaintiff travelled by excursion train from Barnsley to London, "to return by the trains advertised for that purpose on any day not beyond fourteen days after date" thereof, and not being able to find room in one of the ordinary trains from London to Barnsley, came as far as the intermediate station of Doncaster, from which no trains ran to Barnsley, he recovered his posting expenses from Doncaster to Barnsley (). It seems that no damages can be recovered in respect of a failure to keep business engagements (s). But a person having a business appointment to keep might take a special train to enable him to keep it, and charge the expense upon the company, if he would take a special train in a case where he had no company to look to (t). Hotel expenses would in ordinary cases be recoverable, so long as the incurring them was the natural consequence of the company's negligent delay. But where the plaintiff spent three days at an hotel waiting for a parcel delayed by the company's negligence, it was held that he was not entitled to recover hotel expenses (u). (p) Le Blanche v. London and North Western Rail Co. (1876), 1 C. P. D. 286, C. A., reversing in part the decision of the Common Pleas Division, which had affirmed that of a County Court judge. Special leave to appeal had been given under sect. 45 of the Judicature Act, 1873. (a) Hobbs v. London and South Western Rail. Co. (1875), L. R., 10 Q. B. 111. (r) Great Northern Rail. Co. v. Hawcroft (1852), 21 L. J., Q. B. 178. (s) Hamlin v. Great Northern Rail. Co. (1856), 26 L. J., Ex. 20. (t) Le Blanche v. London and North Western Rail. Co., per Mellish, L.J. (1876), 1 C. P. D. 286, C. A. And see Buckmaster v. Great Eastern Rail. Co. (1870), 23 L. T. 471, per Martin, B. (u) Woodger v. Great Western Rail. Co. (1867), L. R., 2 C. P. 318. CH. XV. s. 3. Companies as another com (g) Of Through Traffic and Sea Traffic. The contract into which a railway company enters with a passenger on giving him a ticket between two places is the same whether the journey be entirely over their own line or partly over the line of another company, whether the passage over the other line be under an agreement to share profits (x), or simply under running powers (y). And the law is the same with respect to the carriage of goods (2). But the rule is not of universal application so far as passengers are concerned. The contract with the passenger is only that all persons connected with the carrying of the passenger, and the means and appliances thereof, shall use due care, and does not extend further. This was decided by the Court of Exchequer in extends only Wright v. Midland Rail. Co. (a). Liability for negligence of pany in case of running powers. Wright v. Midland Rail. Co. Contract to persons connected with carrying. Liability of company other than whom ticket taken. that from Foulkes v. In addition to the liability incurred by the company issuing the ticket for a through journey, there is a liability attaching to the company actually carrying a passenger, founded on tort or contract, or both. This was held in Foulkes v. Metropolitan District Rail. Co. (b), in which the plaintiff took a ticket at Richmond from the London and South Western Railway Company, and was Metropolitan carried to Hammersmith by the defendants under running powers. C In this case the whole journey appears to have been conducted by the defendants, who did everything but make the contract and provide the station of departure. The principle would seem to be the same if the actually contracting company had actually carried for a part of the journey however long. District Rail. A railway company has been held not to be liable for damage "Foreign caused by a foreign truck attached to one of its own trains (c). The common condition in a cattle ticket, that a drover travelling free shall travel at his own risk, applies to the whole of a through journey, and exempts from liability for negligence not only the contracting but the forwarding company (d). It is frequently the practice of companies to limit their liability by special contract that they will not be answerable for delay or injury arising "off their own lines." Such contracts are legal, and not within the restriction imposed by the 7th section of the Railway and Canal Traffic Act, 1854 (e). The meaning of the condition that a company will not be responsible for loss arising (2) Great Western Rail. Co. v. Blake (1862), 31 L. J., Ex. 346, Ex. Ch. (y) Thomas v. Rhymney Rail. Co. (1871), L. R., 6 Q. B. 266, Ex. Ch. (z) Muschamp v. Lancaster and Preston Rail. Co. (1841), 8 M. & W. 421; Bristol and Exeter Rail. Co. v. Collins (1859), 7 H. L. C. 194. (a) Wright v. Midland Rail. Co. (1873), L. R., 8 Ex. 137. (b) Foulkes v. Metropolitan District Rail. Co. (1880), 5 C. P. D. 157, C. A. ; and see Elliott v. Hall (1885), 15 Q. B. D. 315. (c) Richardson v. Great Eastern Rail. Co. (1876), 1 C. P. D. 342, C. A. (d) Hall v. North Eastern Rail. Co. (1875), L. R., 10 Q. B. 437. (e) Zunz v. South Eastern Rail. Co. (1869), L. R., 4 Q. B. 539, and p. 410, truck. Limitation of liability by special contract. Zunz v. Suth Eastern Rail. Co. |