The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1878-06-15 00:00:00

COUNTY COURT.

IMPORTANT JUDGMENT.-At the County Court,
on Thursday, Mr. Rupert Kettle, judge, gave
judgment in the case of Folkes (proprietor of
the Lye Forge) v. The Great Western Railway
Company," an action for £5O damages. His
Honour said the action was brought to recover
damages against the Railway Company for not
delivering in good condition, according to the
order of consignment. a bed plate belonging to a
steam hammer. The casting was 4 tons 9 cwt. in
weight, and in the course of transport this
heavy piece of iron had to be unloaded by the
Railway Company. When it was being unloaded
insufficient tackle was tiled, the hooks, or some
part of the chain, broke, and the mass of iron
was allowed to fall, fracturing it, and rendering
useless for the purpose for which it was
intended. The case was of great impori-ance to
persons sending goods by railway in that neigh-
bourhood ; and, inasmuch as the law till lately
was somewhat in an unsettled condition on the
point, he had thought it right to reserve his judg-
ment till then, so that traders might understand
the terms on which they dealt with railway com-
panies. They had two rates for the carriage of
goods—one a higher rate, where they took the
responsibility; and another one lower, on con-
dition the goods were taken at owner's risk. In
this case there was a consignment note that the
goods were taken at owner's risk, and he was
desirous that it should be known what was the
law if goods were so taken at owner's risk. There
is no distinction, his Honour proceeded, between
this case and Lewis v. The Great Western Rail-
way Company; and as Lords Justices Bramwell,
Brett, and Cotton each 0-aye clear and forcible
exposition of the law in their judgments in that
case, I might, without impropriety, confine my-
self to merely quoting that case as an authority
for the judgment I am about to give. But as I
know the case has ()Teat interest to the traders in
this district, I think it right to give a short ex-
planation of the ruling in that case—Lewis v. The
Great Western Railway Company. Phe goods
were in that case, as in this case, sent by the
common carriers at owner's risk." This is now
held to mean at the risk of the owner, minus the
liability of the company for the wilful misconduct
of their servants. What, then, is this wilful mis-
conduct? Before Lewis's case an act of gross
negligence on the part of the carriers' servants
was taken to be: wilful misconduct within the
meaning of the contract. We have now a more
exact definition. First, Lord Justice Bramwell
says : " Wilful misconduct is misconduct' to
which the will is a party: it is something opposed
to accidental or negligent; the mis-part of it, not
the conduct, must be wilful." Next, Lord Justice

Brett says : "" In a contract where wilful miscon-
duct is put as something differing from and ex-
cceling negligence—negligence of every kind—it
seems to me that _it must _ mean the doing or

omitting to do something which it is wrong to do
or omit to do ; the person who is guilty of the act,
or the omission, knowing that the act he is doing
or omitting to do is a wrong thing to do or
omit." Lastly, Lord Justice Cotton rules,
.r There cannot, I think, be any doubt that wilful
misconduct is something entirely different from
negligence, something far beyond it, whether it
is what is called culpable or gross, or anything of
that sort. There most be something which the
person doing it knows will cause risk or injury ; or
the doing of an unusual thing with reference to
the matter in hand, either in spite of warzing, or
without care, regardless of whether or no it will
cause injury." Applying, then, the law thus
clearly laid down to the facts before me, I find
that the acts of the defendants' servants were
negligent, but not wilful within the, definition
before quoted. My judgment is therefore for the
defendants, within costs.
SOUTHALL v. STUR3IIN. —This was an action
brought by Joseph Southall against Edward Stur-
man to recover the sum of £ll 18s 6d, fore oals,
gleeds, and carriage of iron,—Mr._ Prescott
I appeared for plaintiff, and Mr. W. S. Hayes de-
fended.—After hearing the evidence his.Honour
gave a verdict for defendant.