The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1880-07-10 00:00:00

A RAILWAY COMPENSATION CASE.

In the House of Lords, on Monday, the cause "The South-
Eastern Railway Company v. Smitherson and Others" has
been heard, and was an appeal from a judgment of the
Court of Appeal reversing a decision of the Exchequer
Division.

Mr. Benjamin, Q.C. Mr. Cohen Q.C. and Mr. Bremner
appeared for the appellants; and Cohen,
BAxgrave Deane for
the respondents.—The case is thus reported in The Times:—

This case involved the point whether a person
killed by an accident which was, at all events, partly
caused by the admitted negligence of the railway com-
pany had been guilty of such contributory negligence
as disentitled his representatives to compensation
under Lord Campbell's Act. The respondents were
the widow and four children of Henry Smitherman,
deceased, who died on the 28th of December, 1878, in
consequence of injuries sustained by him from being
struck by an engine while crossing the appellants
line at the East Farleigh station. The deceased, who
at the time of his death was 32 years of age, was a
writer' grainer, and gilderat Southall. On the even-
ing of the 26th of December, 1878, he went to the
East Farleigh station intending to go to Maidstone by
the appellants' line. At that station there is a level
crossing, and it was necessary, in order to obtain his
ticket, that the deceased should cross and recross the
line. He did cross the line safely, but was killed in
returning.
The evidence given on the part of the plaintiff was
to the effect that after the deceased had obtained his
ticket the signal was given that a train was approach-
ing on the line by which the plaintiff would have to
travel, and the bell was rung which gave notice to the
passengers that the train would stop at the platform.
The deceased thereupon was preparing to recross the
line to reach his proper platform, when a loud and
pro_onged whistle from the approaching engine gave
warning that the train was not going to stop. The
deceased, however, attempted to recross in front of
the engine, which dashed through the station at the
rate of 30 miles an hour, and, being caught by one of
the buffers, received fatal injuries. 'The deceased,
when asked by the doctor who attended him at the
hospital how he came to cross the line, answered, "I
saw the train coming, and I thought I could
clear it."
It was admitted by the company that they had been
guilty of negligence in not sending the usual warning
to the station officials that a special engine was about
to pass through the station at full speed, but it was
contended that, inasmuch as the evidence for the
defence showed that before the deceased endeavoured
to cross the line the signalman shouted out to him to
stop as the train was going to run through, the de-
ceased had been guilty of contributory negligence.
The action was tried at Maidstone, in July, 1879,
before Lord Justice Baggallay and a special jury,
when the latter negatived the allegation of contri-
butory negligence on the part of the deceased, and
returned a verdict in favour of the respondents
for £9OO. In November, 1879, the Exchequer Divi-
sion, consisting of Barons Pollock and Huddleston,
made absolute a rule for a new trial, on the ground
that the verdict was against the evidence and that the
damages were excessive. That decision was reversed
by the Court of Appeal, consisting of Lord Chief
Justice Cockburn, Lord Justice Cotton, and Lord
Justice Thesiger, who were of opinion that the verdict
which the jury arrived at was not so unreasonable that
the case should be sent down for a new trial, but at
the same time the Court directed that the damages
should be reduced to £7OO.

Mr. Benjamin, Q.C., now contended, on behalf of
the railway comnany, that, even admitting that the
defendants had been guilty of certain negligence which
had led to a certain misunderstanding as to the cha-
racter of the approaching train, the deceased had been
guilty of such contributory negligence as conclusively
bound the jury to have found against the respondents.
Lord Blackburn: The bell being rung, every intend-
ing passenger was entitled to assume that the ap-
proaching train would stop at the platform.
Mr. Benjamin: But notice was given to the de-
ceased both by the whistle of the engine and by the
signalman that the train would not stop and that it
would be dangerous to cross the line.
The Lord Chancellor: It is a pity that the Legis-
lature permits level crossings of this character to be
made.
Mr. Benjamin submitted that the deceased, seeing
a train approaching, was bound in prudence to have
waited until it stopped before he attempted to cross.
It was in all cases a very rash thing to venture to
cross a line in front of an approaching engine, and a
person injured in so doing must be held to have been
guilty of contributory negligence. It was evident to
all present on the occasion that the man was attempt-
ing to do a very rash thing, but he had made up his
mind to cross, and did so at all risks. There was no
possible danger if he had waited until the train
stopped, while there was a great risk if he crossed in
front of it while it was in motion. There was no
reason why he should not have waited until it would
have been safe for him to cross.

..... __
The Lord Chancellor: Importing one's own personal
experience into the matter, I should be sorry in such
a case not to be on the proper platform at the time the
train arrived. _ _ _ _

Lord Blackburn: At the same time, this was a slow
train, and probably plenty of time was given for cross-
ing the line and getting into the carriages after the
train stopped.
The Lord Chancellor: The evidence shows that
when trains stopped at this station they drew up
across the level crossing, and that passengers were
therefore compelled to diverge from the crossing when
crossing the line after the trains stopped. If the
company chose to make such an inconvenient station,
they could scarcely expect the public always to do
that which was the most discreet thing.

Mr. Benjamin submited that the whole of the
evidence showed that the deceased had been guilty of
contributory negligence.
Mr. Cohen, Q.C., followed on the same side.
.

_
Mr. Bargrave Deane, on behalf of the respondents,
contended that the acts of the deceased showed that
he had either not heard or had not appreciated the
meaning of the warning given by the signalman, or
that if he had heard and appreciated it, the warning
not having been given until the moment that he was
in the act of crossing, he had, through the admitted
negligence of the company, been placed in such a
situation that he had lost his presence of mind, and
was therefore not guilty of contributory negligence.
Mr. Cohen, Q.C., replied.
The Lord Chancellor, in giving judgment, said that
the case had been very ably argued on both sides, and
that it was not without reluctance that their Lord-
ships had come to the conclusion that the judgment
of the Court of Appeal must be reversed and the case
sent down for a new trial. Their reluctance in
the matter was due to the fact that they were un-
willing to send a case for a new trial againstthe verdict
of a jury unless that verdict appeared to them to be
unsatisfactary ; and, secondly, to the fact that strong
opinions were expressed by three very distinguished
Judges in the Court of Appeal in support of the finding
of the jury. He could only say that in his view suffi-
cient weight had not been given by the jury or by the
learned Judge below to certain points in the case—
namely, to the statement made by the dying man,
which showed that he had seen the approaching train,
and to the position in which he was lying after the
accident, which showed that he must have run up
against the advancing train, in circumstances which
made it a question whether he could or could not
possibly cross in safety. Without saying anything
that could prejudice the case on a future trial, he
must move their Lordships to reverse the decision of
the Court of Appeal and to send the case back for a
new trial.
Lord Penzance, in expressing his concurrence with
the views of the Lord Chancellor, remarked that.
inasmuch as the railway company had been successful
in their appeal, probably some course might be found
which would prevent the parties being put to the ex-
pense of a second trial.
Lord Blackburn could only say that in his opinion
the preponderance of evidence was in favour of there
having been contributory negligence on the part of
the deceased. He hoped that the suggestion made
by the noble and learned lord who had just sat down
would be adopted by the parties.

Lord Watson concurred.

Judgment reversed, without costs, and the cause
remitted for a new trial to be had.