Railways Commissioner (SA) v Thomas [1951] HCA 48

High Court of Australia Dixon, Williams and Kitto JJ. Railways Commissioner (SA) v Thomas [1951] HCA 48

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Sept. 24 Dixon, Williams and Kitto JJ.

This is an appeal from a judgment of Ligertwood J. awarding damages for personal injuries to Mr. and Mrs. Thomas, who were hurt in an accident at a level crossing. The accident took place on 8th January 1950 at about twenty minutes to ten at night. The level crossing is where the railway from Adelaide to Henley Beach crosses a street called May Street. May Street runs from the Port Road and crosses the railway at an angle of seventy degrees and at a point south-west of the level crossing by which the train passes over the Port Road.

The plaintiffs reside in a house immediately on the southern side of the level crossing and are therefore very familiar with the locality. On the night in question they were driving home from the north in a Dodge car. It was a 1924 model tourer. As they crossed the line a train coming from the north-east, that is from Adelaide, hit the car and as the result Mrs. Thomas was severely injured and Mr. Thomas also suffered injury. Mr. Thomas was driving and therefore was upon the side of the car furthest from the approaching train. According to the plaintiffs' case he stopped the car when it was about twenty-seven yards north of the railway line. He looked to his right to see that no train was coming from Henley Beach. He then looked to his left. He asked his wife whether all was clear on her side. He had seen nothing. She replied "Yes, it is all right here." He then went on in first gear at about six or seven miles an hour. Again he looked to his left and again asked his wife whether all was clear on her side. She replied that it was. He then went into second gear and when he was about thirteen yards from the railway line he accelerated. Suddenly, when the front of the car was practically on the line, his wife called out: "There is a train." The train then hit them and he became unconscious. The wife suffered concussion and was unable to remember anything of the accident.