The "level crossing" type of

cases.

of any proved negligence of the defendants; not that there was no proof of the defendants having been negligent at all, for there was evidence which, if believed, showed mismanagement, and would have been quite enough to fix on the defendant company liability to make good any damage distinctly attributable to such mismanagement as its "natural and probable consequence (s). As between the plaintiff and the defendant, however, evidence of negligence which cannot be reasonably deemed the cause of his injury is plainly the same thing as a total want of evidence. Any one can see that a man whose complaint is that his thumb was crushed in the door of a railway carriage would waste his trouble in proving (for example) that the train had not a head-light. The House of Lords determined, after no small difference of learned opinions below, that it availed him nothing to prove overcrowding and scrambling for seats. The irrelevance is more obvious in the one case than in the other, but it is only a matter of degree.

In the "level crossing" group of cases we have some one crossing a railway at a place made and provided by the company for that purpose, and where the company is under the statutory duty of observing certain precautions. The party assumes that the line is clear; his assumption is erroneous, and he is run down by a passing train. Here the company has not entered into any contract with him; and he must prove either that the company did something which would lead a reasonable man to assume that the line was clear for crossing (t), or that there was something in their arrangements which made it impracticable or (s) See pp. 32, 36, above.

(t) As in Wanless's case, L. R. 7 H. L. 12, 43 L. J. Q. B. 185, where the gates (intended prima

rily for the protection of carriage traffic) were left open when they ought not to have been, so that the plaintiff was thrown off his guard.

clear or not. will not do.

unreasonably difficult to ascertain whether the line was Proof of negligence in the air, so to speak, "Mere allegation or proof that the company were guilty of negligence is altogether irrelevant; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injury to somebody, but had no connexion whatever with the injury for which redress is sought, and therefore the plaintiff must allege and prove, not merely that they were negligent, but that their negligence caused or materially contributed to the injury" (u). What may reasonably be held to amount to such proof cannot be laid down in general terms. "You must look at each case, and all the facts of the case, before you make up your mind what the railway company ought to do" (x). But unless the plaintiff's own evidence shows that the accident was due to his own want of ordinary care (as where in broad daylight he did not look out at all) (y), the tendency of modern authority is to leave the matter very much at large for the jury. In Dublin, Wicklow and Wexford Railway Co. v. Slattery (≈), the only point of negligence made against the railway company was that the train which ran over and killed the plaintiff's husband did not whistle before running through the station where he was crossing the line. It was night at the time, but not a thick night.

(u) Lord Watson, Wakelin v. L. & S. W. R. Co. (1886) 12 App. Ca. 41, 47, 56 L. J. Q. B. 229.

(x) Bowen L. J., Davey v. L. & S. W. R. Co. (1883) 12 Q. B. Div. at p. 76.

(y) Davey v. L. & S. W. R. Co. (1883) 12 Q. B. Div. 70, 53 L. J. Q. B. 58: a case which perhaps belongs properly to the head of contributory negligence, of which

Ten witnesses distinctly

more presently. Only the circumstance of daylight seems to distinguish this from Slattery's case (next note).

(2) 3 App. Ca. 1155. Nearly all the modern cases on "evidence of negligence' were cited in the argument (p. 1161). Observe that the question of the verdict being against the weight of evidence was not open (p. 1162).

The "invitation to alight' group.

and positively testified that the engine did whistle. Three swore that they did not hear it. A jury having found for the plaintiff, it was held by the majority of the House of Lords that the Court could not enter a verdict for the defendants, although they did not conceal their opinion that the actual verdict was a perverse one (a).

In the other group, which we have called "invitation to alight" cases, the nature of the facts is, if anything, less favourable to the defendant. A train stopping at a station overshoots the platform so that the front carriages stop at a place more or less inconvenient, or it may be dangerous, for persons of ordinary bodily ability to alight. A passenger bound for that station, or otherwise minded to alight, is unaware (as by reason of darkness, or the like, he well may be) of the inconvenience of the place (b), or else is aware of it, but takes the attendant risk rather than be carried beyond his destination. In either case he gets out as best he can, and, whether through false security, or in spite of such caution as he can use, has a fall or is otherwise hurt. Here the passenger is entitled by his contract with the company to reasonable accommodation, and they ought to give him facilities for alighting in a reasonably convenient manner. Overshooting the platform is not of itself negligence, for that can be set right by backing the train (c). It is a question of fact whether

(a) The majority consisted of Lord Cairns (who thought the verdict could not have stood if the accident had happened by daylight), Lord Penzance, Lord O'Hagan, Lord Selborne, and Lord Gordon; the minority of Lord Hatherley, Lord Coleridge, and Lord Blackburn. Ellis v. G. W. R. Co. (Ex. Ch. 1874) L. R. 9 C.

P. 551, 43 L. J. C. P. 304, does not seem consistent with this decision; there was difference of opinion in that case also.

(b) Cockle v. S. E. R. Co. (1872) Ex. Ch. L. R. 7 C. P. 321, 41 L. J. C. P. 140.

(c) Siner v. G. W. R. Co. (1869) Ex. Ch. L. R. 4 Ex. 117, 38 L. J. Ex. 67.

under the particular circumstances the company's servants were reasonably diligent for the accommodation of the passengers (d), and whether the passenger, if he alighted knowing the nature of the place, did so under a reasonable apprehension that he must alight there or not at all (e).

cations

All these cases are apt to be complicated with issues Compliof contributory negligence and other similar though not with contributory identical questions. We shall advert to these presently. negli

tions of

of negli

It will be convenient now to take a case outside these gence, &c. particular types, and free from their complications, in which the difficulty of deciding what is "evidence of negligence" is illustrated. Such an one is Smith v. London and South Western Railway Company (f). The facts are, Other in this country and climate, of an exceptional kind: but illustrathe case is interesting because, though distinctly within "evidence the line at which the freedom of the jury ceases, that line gence is shown by the tone and language of the judgments in L. & S. W. both the Common Pleas and the Exchequer Chamber to R. Co. be nearly approached. The action was in respect of property burnt by fire, communicated from sparks which had escaped from the defendant company's locomotives. The material elements of fact were the following.

Hot dry weather had prevailed for some time, and at the time of the accident a strong S.E. wind was blowing. About a fortnight earlier grass had been cut by the defendants' servants on the banks adjoining the line, and the boundary hedge trimmed, and the cuttings and trim

(d) Bridges v. N. London R. Co. p. 386, above.

(e) Robson v. N. E. R. Co. 2 Q. B. Div. 85, 46 L. J. Q. B. 50; Rose v. N. E. R. Co. 2 Ex. Div. 248, 46 L. J. Ex. 374 (both in 1876).

(f) L. R. 5 C. P. 98, 39 L. J. C. P. 68, in Ex. Ch. 6 C. P. 14, 40 L. J. C. P. 21 (1870). The accident took place in the extraordinarily warm and dry summer of 1868.

Smith v.

:

mings had, on the morning of the fire (g), been raked into heaps, and lay along the bank inside the hedge. These cuttings and trimmings were, by reason of the state of the weather, very dry and inflammable.

Next the hedge there was a stubble field; beyond that a road; on the other side of the road a cottage belonging to the plaintiff, 200 yards in all distant from the railway.

Two trains passed, and immediately or shortly afterwards the strip of grass between the railroad and the hedge was seen to be on fire. Notwithstanding all efforts made to subdue it, the fire burnt through the hedge, spread over the stubble field, crossed the road, and consumed the plaintiff's cottage.

There was no evidence that the railway engines were improperly constructed or worked with reference to the escape of sparks, and no direct evidence that the fire came from one of them.

The jury found for the plaintiff; and it was held (though with some difficulty) (h) that they were warranted in so finding on the ground that the defendants were negligent, having regard to the prevailing weather, in leaving the dry trimmings in such a place and for so long a time. The risk, though unusual, was apparent, and the company was bound to be careful in proportion. "The more likely

the hedge was to take fire, the more incumbent it was upon the company to take care that no inflammable material remained near to it" (i). Thus there was evidence enough (though it seems only just enough) to be left for

(g) See statement of the facts in the report in Ex. Ch. L. R. 6 C. P. at p. 15.

(h) Brett J. dissented in the Common Pleas, and Blackburn J. expressed some doubt in the Ex.

Ch. on the ground that the particular damage in question could not have reasonably been anticipated.

(i) Lush J. in Ex. Ch. L. R. 6 C. P. at p. 23.