The Sun.
London, England, 1870-06-21 00:00:00

RAILWAY COMPENSATION.

EVIDENCE OF THE JUDGES.

The Select Committee appointed to consider the state
of the law with reference to the liability of railway com-
panies to compensation, resumed its sittings yesterday,
when Baron Martin and Baron Bramwell, of the Court
of Exchequer, were examined. Mr. Headlam,
the chairman of the committee, addressing the judges,
said : Baron Martin and Baron Bramwell,—The House
of Commons have directed us to inquire into the
state of the law respecting the liability of railway com-
panies to give compensation in case of accident to
passengers, and in the course of that inquiry they have
had before them several gentlemen representing the inte-
rests of railway companies. They complain both of the theory
of the law and of its administration. We have, therefore,
thought it right to obtain the assistance of judges, like
yourselves, of the highest experience, to assist us in the
inquiry. _

The learned judges were then examined at great length
in respect to the several points raised.
Baron Martin said that unless there were some special
provisions in Acts of Parliament to the contrary of
which he was not aware, the liability of the railway
companies was regulated by the common law of England.
With respect to the carriage of goods, the common law
of England makes it incumbent upon public carriers to
carry all goods that come to them, but there is no such
liability by the common law to compel them to carry
passengers, and in point of fact he was not aware that
there was any absolute penalty if they refused to carry
passengers. They carried passengers in the same way as
any other people seeking to make money by business, and
consequently they sought to carry as many passengers as
they could.
Baron Bramwell said that the idea of the companies was
that they could not get rid of their liability to carry pas-
sengers, and therefore to pay them compensation for
injuries ; but he agreed with his brother Baron Martin
that they might refuse to take them altogether.
Mr. Headlam pointed out the difference in the value of
certain lives, and asked whether it would be in the power
of the companies to refuse to carry persons whose lives
were very valuable except at an enhanced fare.
Baron Martin said that would be illegal. It would be
legal to charge them up to the extent of the maximum
fare, but they were all restrained with respect-to the fares
to be charged to each class of passengers, and therefore all
they could say was "We cannot take you." They could
not say, " We will only take you if you pay twenty times
the amount of the fare." The ordinary mode of performing
their duty was to say, " We won't take you at all."
Baron Bramwell : My notion is that they could not re-
fuse to carry a passenger, but they might say to every pas-
senger, " If we carry you at the ordinary fares we will
not be liable for any accident." I don't know anything
that could prevent their doing that, seeing that they are
not bound to carry at all.
Baron Martin said that if they were called upon to give
an authoritative opinion on the subject they ought really
to have some little time to consider it, because he had
great doubt as to whether a company could say that they
would carry a passenger,. but that whatever occurred on
the journey, under no circumstances would they be re-
sponsible. In fact, it would be repugnant to the spirit of
the contract. He would rather not answer the question
without consideration.
The Chairman pointed out that the Act for the general
regulation of traffic in 1854, known as the Railways
and Canal Act, included not only goods but passengers.
Baron Martin said that they could not, under the com-
mon law exonerate themselves from all liability. The
general Act requires that they shall make arrangements
for receiving and forwarding the traffic without unreasonable
delay, and that included passengers.
Baron Bramwell said that it appeared to him to be
really a question of contract. A man taking a railway ticket
made a bargain between himself and the company that
they would each conduct themselves with reasonable care
and diligence in the matter, and if he came to harm on
the journey, the bargain was broken by the company.
The Chairman said that railway companies thought it a
hardship in the law that they were made liable when there
was no fault on their own part,and where there had been no
positive negligence, and he put the case of the injustice of
making the master of a private carriage liable for injury
caused by his driver, when he had taken the very best
means he could to get the most careful driver.
Baron Martin said that that was a question involving
the general law of master and servant, which law was
as old as any in the country, and it was a well-established
principle of the law that a master was liable for the neg-
ligence of his servants.
Baron Bramwell said that if his servant was driving
him in his carriage and caused damage to another,
he would be liable, because he was driving
him as his servant, and he had a right to
control him, and tell him whether to drive fast
or slow, but if he hired a cab the cabman was not his
servant' in law, and if he told him to drive so and so h e
might say thathe would drive fast or slow just as he pleased
so long as he was within the limits of the law. The result
was that if he was riding in his own carriage he was
liable, but if he jobbed a carriage or a coachman
or a day the rule did not apply. There
did not seem to him to be any sound principle in
that, and it seemed to be a relic of the old Roman law in
which the sevants were really slaves, and consequently the
master was liable for their acts just as he would be for the
damage done by his cattle in trespassing. It was quite
certain that if a coachman, in the absence of his master,
chose to drive his fellow servants out for a treat and in-
flicted any damage either on them or anyone else, the
master was not liable.
Baron Martin : The master is not held liable criminally
at all in the case of an accident caused by his servant, but
if he sat on the box of the carriage and encouraged him to
drive furiously he would be.
Baron Bramwell said that he was a railway shareholder
himself, and might therefore be supposed to be in their
favour, but his opinion was that it was a matter of bar-
gain between the passenger and the company, and there-
fore no hardship could arise. He should have no objec-
tion to the liability itself provided that none but honest
claims were made ; but he objected to a liability involving
dishonest claims, and very often foolish and dishonest
verdicts ; and therefore the railway shareholders asked
that they should not be held liable to any damage arising
from negligence, because if they were, all the rogues in the
train would be bringing actions against them. He thought
whatever rules the companies made the general law would
render them liable ; but he thought that the suggestion
made that the railway companies should be allowed
to limit their liability by way of assurance was a valuable
one.
Baron Martin thought that the public would have no
right to complain of such a provision as that of being
called on to pay for assurance, and that the com-
pany should not be held liable to damages beyond the
amount assured, but he thought that in practice in every
instance the companies would be held liable to pay the
highest amount. He did not think that so far as his ex-
perience went the injuries of railway passengers were
fictitious. In most cases in which claims were made they
had sustained some injury, though they might be exag-
gerated. He believed that in case such an altera-
tion were made the highest damages which could be
would always be given, and it was for the railway com-
panies to consider whether they would gain or lose by it.
Baron Bramwell thought that it would be perfectly fair
to limit the liability in that way. There were now few
cases of culpable negligence, but they were extremely
rare as was proved by the fact that very few persons
had been found guilty of manslaughter in consequence of
such accidents.
The learned judges were then examined as to the ad-
ministration of the law, and
Baron Martin said that it was not likely that seventeen
judges would come to a unanimous opinion as to the precise
manner in which the law should be administered, but he had
always endeavoured to keep the damages down to a
moderate amount. He could not call to mind any one case he
had tried in which he thought the damages were outrageous.
His brother Bramwell's experience also was that taking
into consideration the nature of the cases he had tried, his
impression was that assuming the cases to be really genuine
the damages were not excessive.
Baron Bramwell said that not only did he not consider
the damages awarded too excessive, but he had in many
cases been rather surprised at their moderation. He
thought, however, that the railway companies were very
unwise in having the cases tried by special juries, because
as they always gave their verdict according to the value
they attached to their own lives and limbs, it was likely
that they gave much higher damages than ordinary jury-
men would give.
Baron Martin said that he thought extreme damaes
were given, from the example set in the early history of
railways, when there was a general impression on the
minds of the public that they were going to be extremely
profitable undertakings. He thought it very desirable
that there should be an inspection by the Board of Trade,
and that a commission should be issued establishing a par-
ticular court in which to try railway cases. There was no
doubt that a certain class of attornies and doctors made it a
business to get up these cases—at all events he had seen
the same faces very frequently. He was also of opinion
that there should be a medical man attached to the court,
perfectly independent both of the railway companies and
the passengers, who should give their opinion as to the
condition of the passenger and the effect of the injury.
Baron Bramwell also concurred that in the large
majority of the cases they were real, though they might
be a little exaggerated, and the amount of damages was
not excessive.
The learned judges then retired.
Sir G. Watkin the chairman of the South Eastern was
then examined, and stated that the compensation given in
cases that were suspected not to be genuine was very
great, and the cost bore the proportion of 20 per cent. to
the damages, of which 12A went to the lawyers and 7 to
medical men. He complained that the railway companies
were subject to having actions brought against
them a year or two after the accident, and
when the opportunity of making inquiries into
the merits of the case was lost. No claim
should be allowed to be entertained in cases in
which notice had not been given of the claim within a
reasonable time. He approved of the suggestion for the
establishment of a separate court for the trial of these
cases.
Mr. Laing, the chairman of the London and
Brighton, was also examined, and expressed his
opinion that if some limitation were placed on
the cost to which railway companies were put to, the
public would get the advantage in cheaper fares. I--fe did
not think it would be advantageous to the railway com-
panies to assure, but it was a concession which they
would have to make. He was in favour of arbitration as
a means of settling such claims.
The committee adjourned at four o'clock.