THE..COMMISSIONER FOR RATLWAYS. REASONS FOR JUDGMENT 4.2 Gonrley, Gort, Print., Mtb, Friday, 17th December, 1954. cn168/a1 OM cn nnn oe 4. : aL THE COMMISSTONER FOR RATLWAYS ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court discharged. In lieu thereof order that the appeal to the said Full Court be allowed with costs and the verdict and judgment for the plaintiff be set aside and a verdict and judgment be entered for the defendant with costs. " JUDGMENT THE COMMISSIONER FOR RAILWAYS HANNA DIXON C.J. WEBB J. KITTO J. TAYLOR J. THE COMMISSIONER FOR RAILWAYS v. HANNA DIXON C.J. WEBB J. KITTO J. JUDGMENT . TAYLOR J. This is an appeal from an order of the Full Court of the Supreme Court of New South Wales which dismissed a motion by the present appellant for judgment in an action in which a verdict for the sum of £5,000 was returned by a jury in favour of the respondent. The. action was one which had been instituted by the respondent, pursuant to the Compensations to Relatives Act, 1897, to recover damages on her own behalf in respect of the death of her husband which _ resulted from injuries received by him on the 30th June 1952. On and before that day the deceased was employed by the appellant as a leading fettler and on the day in question he was detailed with three other employees to remove weeds from the permanent way on portion of the main northern line in the vicinity of Hamilton, near Newcastle, and it was whilst performing these duties that he suffered the injuries which resulted in his death. There were no eye-witnesses of the mishap and, at the conclusion of the respondent's case at the trial, counsel for the appellant intimated that he did not propose to call evidence and submitted that there should be a verdict for the appellant by direction. The grounds of that application were that the evidence called on behalf>' of the respondent did not support any allegation of negligence on the part of the appellant and, further, that upon the evidence adduced, the inescapable inference was that the deceased's ' injuries had been caused by a failure on his part to exercise reasonable care for his own safety. The railway tracks where, and in the vicinity of where, the deceased was working consisted of two pairs of rails separated by what has been referred to as the "six foot". The track was not straight at this point but for a distance of half a mile, or more, it described a wide arc. Proceeding "up", or towards Sydney, the curve was to the left and on the inside of the curve there were a number of buildings and ornamental trees, whilst at a point a little "up" from where the deceased was discovered after his injuries had been sustained there was an adjacent "up" signal. The deceased and the three fellow employees who were detailed to remove weeds from the permanent way commenced their work shortly after 7.30 asm. on the Sydney side of this signal, but a little later one of the four was sent away to perform another task. Another of the four was temporarily absent from the track at a later stage when the deceased and the fourth employee, one Paulo, suffered their injuries. There is no doubt that the injuries of these men were caused when, about 8.30 a.m., they were struck by a light engine which was proceeding tender first on the "up" line in the direction of Sydney. Shortly before this engine reached the point where the deceased and Paulo were working they were observed by the fireman of a "down" goods train working in the "four foot" of the down line. According to this witness the two men appeared to be bending over examining the rails when he first observed them. Ata distance of about one hundred yards from them he sounded the whistle on the engine of the approaching train whereupon the two men moved from between the two rails which formed the "down" line to the "four foot" of the "up" line. As the engine of this train passed the men they stood facing it and this was the last seen of them before the accident. The goods train was said to be travelling at a speed of five to ten wre miles per hour and after the engine had proceeded about one hundred yards past the point where the two men were last seen it passed a light engine which was proceeding tender first on the "up" line at a speed of twenty to twenty-five miles an hour. The driver of this engine was stationed on the right hand side of the engine as it proceeded and it is clear that the curve of the line was such that he was not in a position at any stage to observe the deceased and his companion. The fireman, whose duty it was to keep a look out when he was "not necessarily- otherwise engaged" did not see the two men but on meeting the engine of the goods train the whistle of the light engine was sounded. The evidence established that after this engine had proceeded approximately one hundred yards beyond the point where the whistle had been sounded it struck the two men and-caused the injuries which resulted in their death. Equally, it was established, that at the time it struck them the two men were... °.-: in the path of the oncoming engine and, presumably, they either remained in entire ignorance of its approach or observed it too late to enable them to move from its path. It is clear upon the evidence that at the moment they were struck a substantial portion of the goods train, which was some two hundred and forty yards long, remained to pass them and the noise made by this train may well have tended to obliterate the sound of the whistle of the light engine. Moreover, there was a strong gusty wind blowing 'from the men in the direction of the light engine and a failure on their part to hear the whistle is quite understandable. We should add that the evidence showed that from the place where the two men were struck the light engine could have been seen approaching for some six chains. In these circumstances the respondent alleged that the death of her husband was caused by the negligence of the appellant. The negligence, it was said,was fourfold. It was alleged that the fireman had negligently failed to keep -4- a proper look out, that the appellant should have notified the deceased, as leading fettler, of the probable times of approaching trains, that the working party should have been accompanied by a flagman exclusively detailed to keep a look out for approaching trains, and, finally, that the construction of the line at the point in question, with the buildings and ornamental trees on the inside of the curve, had been carried out negligently inasmuch as it rendered adjacent signals difficult to observe and made the keeping of a good look out impossible. The first of these issues was the only one which was left to the jury, but since the motion of the appellant to the Full Court was for judgment it is necessary for.us to consider whether a verdict for the respondent could be supported on any of these grounds. There is, in the circumstances of this case, no substance in the second and fourth allegations of negligence and it is,we think, sufficient to say that they are quite incapable of supporting a verdict against the appellant. The allegation that the fireman of the light engine failed to keep a proper look out is based, in its ultimate analysis, upon the mere fact that he failed to observe the deceased and his companion in the path of his engine, for there is, in our opinion, no other evidence from which the inference can be drawn that his duties in this respect were performed negligently. Neither the driver nor the fireman of this engine were aware that the engine had struck the deceased until they were so informed at a much later stage during the day and it was not until then that the fireman was called upon to recollect precisely what he had been 'doing when the engine was in the vicinity. He recalled passing the goods train and said that after passing the engine of that train he sounded the whistle of his engine. Then, he said, he concentrated on "picking up" the next "up" signal, the direction of which lay along "a> chord of the arc described by the line and which was visible over and through the ornamental trees to whichwe have already referred. It seems reasonable to assume that this is what the fireman was doing during the very brief period in which the deceased might have been observed some little distance ahead in the path of his engine. W use the expression "very brief period" because the deceased could not have been seen more than about six chains back from the place where he was struck, nor during the short distance before that point where the tender would have obscured the line immediately in front of the engine. We do not think that the respondent was entitled on this evidence to ask the jury to find that the fireman failed to keep a proper look out. The circumstances in which the fireman failed to see -the deceased were established in the respondent's case at the trial and if the jury were entitled to reject the explanation o£ the fireman it does not by any means follow that they were entitled to assume that his failure to observe him resulted from carelessness or negligence. The position of the fireman was vastly different from that of a person driving a vehicle upon a highway; he had many duties to perform and it was not his function to keep a continuous look out. Moreover, the engine was proceeding along an enclosed track and was not, at that stage, likely to encounter persons inexperienced in railway routine or persons for whose safety regulations had not been devised. The deceased, as leading fettler, was in charge of the group - diminished as it was at the time of the accident - and it was proved in the respondent's case at the tmwial that it was part of his duties to safeguard the men working under him. It was also proved that railway practice required men working on one set of lines, in circumstances such as the deceased and his fellow employees were working, to move clear of both the 'up" and 'down"lines' on the approach o£ a train on either. Evidence was given that the deceased had been so instructed and also that men working under his charge on railway tracks should work facing in the direction of any oncoming traffic. It is unnecessary to say that the reason why these practices should be observed is obvious and their existence provides a further distinction between the position of the fireman and the position of the driver of a vehicle on a public highway. Not only was the fireman not obliged to keep 2 continuous look out, he was obliged to perform other duties which made such a course impossible and the mere fact, without explanation, that he did not see the deceased does not support the allegation that he was negligent in his look out duties. On the other hand if his explanation be accepted the conclusion must be the same. In discussing the appellant's motion to the Full Court of the Supreme Court Herron J. — with whom Maxwell and Clancy JJ. substantially agreed - expressed the view that there was some evidence of negligence fit to be left to the jury, butwe gather from his observations that this opinion was confined to the question of the efficiency or propriety of the look out kept by the fireman, "Presumably", he said, "the jury must have been of the opinion that if a whistle had been sounded from the light engine when the two fettlers were first able to be seen, there was sufficient time for them to reach a place of safety before the accident". It will be remembered that upon the respondent's case the whistle of the engine was sounded when it was approximately one hundred yards away from the deceased though, no doubt, it might have been sounded more insistently if the two men had been observed. But this consideration assumes that the fireman was negligent in failing to observe the two men and is concerned only with the action which might have been taken by the fireman if he had observed them. It does not lead to the inference that the fireman performed any of his duties negligently unless mere failure on his part to observe the two men, itself, constituted evidence of negligence. For the reasons already given we.are"of ca the opinion that this is not so. The final allegation of negligence on the part of the appellant was that, having regard to the nature of the construction of the railway line at the material point, and . to the manner and extent of its user, the exercise of reasonable care required the attendance of a flagman or other employee for the exclusive purpose of watching for approaching trains and warning both oncoming traffic and those who were working on the line. "the evidence showed that the adoption of such a safeguard was not customary in circumstances such as those disclosed in the present tase, and while that circumstance is not fatal to the respondent's allegation that failure to adopt it constituted negligence, it is not without considerable significance (cf. Mercer v. The Commissioner for Road Transport and Tramways) (56 C.L.R. 580)) particularly where, in a case such as the present, no suggestion is made that the safeguards which were adopted had proved insufficient to prevent injury to railway employees. Experience may show that existing practices ought to be modified in the interests of safety, but there is nothing to show that the practices designed for the protection of employees in circumstances such as the present fell short of that which the requirements of prudence or reasonable care demanded. The occurrence of an accident, however, always provokes enquiries as to its cause and on many occasions it may appear, after the event, that if some additional precaution had been taken the accident probably would not have happened. But the mere fact that, such an additional precaution probably would have saved an injured person from injury does not constitute its omission a negligent acte The question must always be whether there has been an omission to provide some safeguard which, according to experience and reason, the exercise of reasonable care required. In the present case, it is, in effect, said that if an employee had been detailed exclusively to keep a look out for approaching -8- trains and to give warning of their approach this accident would not have happened and accordingly, it is said, the omission of such a precaution constituted evidence upon which the jury could have found that the prevailing system of working was unsafe. To this there are two answers. The first is that a@lready indicated; the fact that the additional precaution might have been taken and that, if it had, the accident may not have happened, does not justify a finding, in the circumstances of this case, that the exercise of reason—- able care required modification of the existing practice. The second answer is that the accident occurred not because of any defect in the existing practice but because, on the respondent's own case at the trial, that practice was not observed. It is clear from the evidence that the deceased and Paulo both heard and heeded the warning of the approaching goods train and that, in violation of the existing practice, they moved to the "four foot" of the "up" line instead of moving clear of the track altogether. In these circumstances we fail to see how it can be said that the jury was entitled to find that the system of working which had been devised — and which was not observed - was unsafe. But in giving these answers to the respondent's submission on this point it should not be assumed that we agree that the employment of a flagman would have saved the deceased and his companion from injury for, immediately before the approach of the goods train, they were working on the "down" line and it is reasonable to suppose that, in those circumstances, it would have been the duty of a flagman to station himself some distance "up" from them for the purpose of keeping a look-out for trains approaching from the direction of Sydney. No doubt, if so stationed, he would have warned the deceased and his companion of the approach of the goods train from that direction, but this would have achieved no more than, upon the respondent's case at the trial, the sounding of a warning from that train actually did. ' That being so, it is impossible to conclude that the employment of a flagman would, in the circumstances of this case, have avoided the acoident. ; For the reasons given we are of the opinion that the appeal should be upheld and judgment entered for the appellant. JUDGMENT HANNA McTIERNAN J. w THE COMMISSIONER.FOR RAILWAYS HANNA JUDGMENT McTIERNAN J. The appellant seeks in this appeal an order setting aside a verdict for £5,000 damages returned for the respondent in an action tried by Kinsella J. and a jury and an order entering a verdict for itself. The respondent brought the action with the aid of the New South Wales Compensation to Relatives Act (Lord Campbell's Act) to recover damages for the loss of her husband who met with a fatal accident while at work on the railway line. His occupation was that of a fettler. He and another fettler, a new Australian, of whom the deceased was put in charge, were run down in broad daylight by an engine travelling with its tender in front. The accident happened on a curve in the line. It appears that the speed of the engine was about 20 to 25 miles per hour. The cause of action pleaded was negligence. The respondent alleged breaches of the appellant's duty at common law as the employer of the deceased man to take due and reasonable care for his safety and not to subject him to unnecessary risks. The facts obviously raised that duty. The appellant controlled the railway line and the engine which ran down the appellant and employed the deceased man to work in and about the line where he was run down. The appellant knew or ought to have known that the respondent's husband and the other fettler might be in the path of the engine. There was no flagman or other system for warning the deceased and his mate. The respondent, in ee my opinion, very properly alleged that in those circumstances it would be negligence if 4 proper look out were not kept by the crew of the engine for these two fettlers. The appellant had indeed imposed upon the crew of every locomotive engine a duty to be vigilant. This was done by Departmental Regulation 171A, which is in these terms: "The engine driver must keep a good look out all the time the engine is in motion, and the fireman must do so when he is not necessarily otherwise engaged". Kinsella J. left only that issue of negligence to the jury. The case of a widow or of children who are called upon to prove that the death of the husband or father was caused by negligence but have no eye-witness of the accident cannot always be a perfect one. The appellant's attack upon the verdict is based upon the supposed scantiness of the proof of its own negligence and the amplitude of the proof of contributory negligence on the part of the deceased. The appellant called no evidence at the trial and asked Kinsella Je to direct a verdict for itself. The main submission was that from the evidence adduced for the respondent the jury could infer nothing but contributory negligence. Kinsella J. rejected this submission. It was repeated to the Full Court o£ New South Wales and again rejected. It was alvanced for the third time to this Court. In my opinion it ought to be rejected again. 'The submission depends upon the evidence that the crew of the goods train saw the deceased and his mate standing in the "four foot" of the up line, where according to the submission they had no shadow of a right to be. Now it is true that a rule which a fettler ought to obey is not to stand inside the adjacent track when a train is passing on the other track but to move to the side of the line. There may be circumstances in which the breach of that rule by a fettler resulting in injury to him may show that he neglected to take due care for his own safety and was guilty of contributory negligence. However, the only hypothesis is not as that the two fettlers had remained standing where they were, when last seen alive by the crew of the goods train, until the engine with the tender came and ran them down. Mr. Miller submitted that other hypotheses not involving failure on the part of the deceased to take due care were equally consistent with the facts. I agree with the argument. One hypothesis given by counsel was that the two men had resumed work on the up line before the engine struck them. If they did so they were clearly not breaking any rule designed for their safety. Inferences of fact were needed to be drawn by the jury before the issue of contributory negligence could be determined. The appellant was not upon the evidence entitled as a matter of law to have a verdict entered for it. That is the principle to be applied. In my opinion it is not applicable to the evidence in this case. The question-whether there was evidence of negligence does not seem always to have been treated by the appellant upon a par with the submission about contributory negligence. The evidence is not ample even if it is sufficient. The submission upon the question of negligence was also rejected by Kinsella J. and upon appeal by the three members of the Full Court. It is made again to this Court. In my opinion it should fail, Admittedly the evidence of negligence is not ample, and that view has been taken in the Courts below. But the four judges who have considered the evidence have all thought that it is sufficient. They are judges of great experience in deciding a question of this kind. I have no hesitation in agreeing with their conclusion. It is sufficient to refer to some facts stated in a number of passages which I take leave to quote from the judgment: of Kinselle J. given upon the submission at the trial, his summing up and the reasons for judgment of Herron J. In deciding to leave the case to the jury Kinsella Je said that the jury "may infer from the fact that neither + member of the crew of the engine which was, on all the evidence, the engine that struck the deceased, saw him before or even after the impact, that a proper lookout had not been kept." In summing up he said this: "The negligence which is relied upon by the plaintiff in this action is the failure of the crew of the engine to keep a proper lookout, having regard to the possibility of fettlers being employed on the tracks. The undisputed fact is that the crew of the engine which struck the deceased man did not see him at all. They drove it back to the Broadmeadow engine sheds and it was left to some other employees of the defendant to find two men on the track, one dead and one seriously injured, and thereupon an examination was made of this engine and bloodmarks were found upon it which left no doubt that this engine was the one which had struck and injured the plaintiff's husband. From the undisputed fact that the crew of the engine did not see the dead man, Mr. Miller invites you to infer that they must have been negligent in their lookout. Well, the evidence is quite simple. 'fhe driver of the engine could not see anything. Because of the curve on which the engine was running, the tender completely obstructed his view of the line where men were working, so it really turns on the question of whether the fireman was negligent. The evidence establishes that the duty of the fireman is to keep a jookout except when engaged on other duties. He, of course, has to fire his engine and he told you he had to keep a check on the steam pressure gauges and other parts of the engine equipment, so that he cannot have his eyes glued on theline ahead of him the whole time. You might assume that the Commissioner, to some extent at least, is entitled to run his trains on the assumption that the line on which they are running will be kept clear, but he must, in reason, have in mind the possibility that fettlers and others may be working on the track and he must take reasonable care to avoid them. The guestion here is whether the fireman sy acted without reasonable care in failing to see them. He says that when coming along this part of the track he was trying to pick up the coloured signal. in your minds does that fact satisfactorily explain his failure to see Mr. Hanna, or was his failure to see him due to lack of reasonable care on his part. Again I remind you that reasonable care is the standard imposed by law; not perfect care". The passages in the judgment of Herron J. are as follows: "The place where the accident occurred was fairly accurately determined as blood marks were found opposite the 101.78 monument, this spot being on the up-line. At this place the up~line is ona pronounced curve to the left as one proceeds south towards Sydney. The visibility is further impeded on the inner aspect of the curve by heavy foliage and buildings. However, photographs and a plan tendered at the hearing show that there was some view to be had from an engine running on the up~line and by a person standing at the point of the accident looking north. This view was estimated by a sergeant of Police to be about 6 chains at least. Thus the deceased would have been about 132 yards distant from the engine when he might have been observed by its crew. The engine~driver, being on the right—- hand side of the engine and thus on the outer aspect of the curve, would see nothing directly ahead. The fireman could have seen the deceased at the distance stated, 132 yards, if he bad been observing the line directly ahead. In fact he did not see anything of the two men at all and knew nothing of the accident until some four hours later." .... "According to his evidence, Neilson the fireman was looking for a coloured light signal situated some distance beyond the curve and said that he was concentrating on finding it. He was asked, "What were you in fact doing as you were proceeding along there?' and his answer was 'I would be looking out'. He was then asked 'Were you stoking?' and his reply was 'No. I would not be stoking. . Probably looking at whether I had sufficient steam pressure or water in the glass or something like that. I had other duties.' The next question was 'However, you weren't bending down stoking?' and the answer was 'No.' Whilst it must have been open to the Jury to draw the inference that with ordinaxy care the view of the fireman Neilson ought to have included the two men on the up-line ahead if they concluded that he was looking out for the signal..." The only definite point of the fireman's evidence is that he was looking out for the signal, The jury could reasonably infer that it was practicable for him to look out and that he was doing so. If they made that inference they could proceed to the conclusion that the fireman had a view of the track ahead at any rate up to the scene of the accident. It was his duty to keep a "good look out" and he would be guilty of a default for which the appellant was answerable if he looked out only for the signal and neglected to look out for the fettlers who were expected to be working on or about the track. A driver of a motor car has a duty to keep a proper look out for pedestrians as well as traffic signals. The fireman had a duty to look out for the deceased and his mate, because they might reasonably be expected to be at work some where on the curve, as well as for the signal. It is stated above that there was no flagman to warn the deceased and his fellow workmen of the approach of the engine. According to the evidence the deceased had to watch out for engines and trains while carrying out his work. The work was pulling out weeds growing on the permanent way including the space between the rails of each track. He and his mate used their hands to do this work and they did it in a bending position. In my opinion it was a breach of the duty of care owed to the deceased and his mate to drive this engine along the line where the deceased might be without a careful look out being kept for him. The jury could look out or no reasonably find that either no/proper look out was kept and that whatever the omission was it was negligence. It is a reasonable supposition upon the evidence that if the crew of the engine had been keeping a proper look out and given a warning whistle the fettlers might have had time to jump from the line. The deceased had had long experience as a fettler and presumably was used to such manceuvres. I would dismiss the appeal.