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. Ligertwood J. found that the crossing was dangerous at nighttime and should have been provided with warning devices such as flashing lights and bells. In arriving at this conclusion he took into consideration the inadequate lighting of the engine. Neither of the plaintiffs had heard or seen the train but his Honour found that in fact the fireman did sound the whistle before reaching the crossing at the place marked by a whistle board. Four witnesses who were in the vicinity at the time said that the train did not whistle, which must mean that they did not hear it. The railway line straightens out as it approaches the May Street crossing from the north-east after a curve of fifty chains radius. On either side of the railway there is a road running parallel with it. These roads of course cross May Street with the railway line. The traffic carried by the railway line is not inconsiderable. Trains drawn by steam engines as well as rail cars pass over the line frequently. The road traffic along May Street, while apparently not heavy, is substantial and it might be described as a frequently used street. On the other side of the Port Road in the vicinity of the crossing is a large factory showing lights, and these could be seen from May Street crossing. At the Port Road crossing bells were rung as the train passed and in favourable weather conditions these could be heard at the May Street crossing. Otherwise vehicles crossing the line at May Street had no warning of the approach of a train from Adelaide except the noise of the train and the whistle and their ability to see its lights. The train by which the plaintiffs were run down was a steam passenger train. The engine carried a head lamp and a side lamp for the purpose of indicating its destination. A good deal of evidence was given as to the character of these lights, particularly of the headlight, and also concerning the audibility of the whistle. On behalf of the appellant commissioner it was also maintained that the lights from the carriages of the moving train could be seen as it came round the bend. As to the last, Ligertwood J. said that, having had the advantage of a view of the approaching train at night, he accepted the evidence of those witnesses who said that to a person near the crossing no light from the carriages would be visible until the train was almost opposite to him. His Honour was of opinion that when the engine whistled it was quite likely that the noise did not penetrate the interior of the plaintiffs' vehicle and, further, that at that time Mr. Thomas had started in first gear, which would create a noise inside such an old car. Even if he were in second gear the noise of the gears was likely to be considerable. His Honour's finding concerning the lighting of the engine is expressed as follows:—"Having regard to this general evidence, I think it is proper to take into account evidence of the plaintiffs and their witnesses, that on particular occasions they found it difficult at the crossing to pick out and distinguish the light of an approaching train. The difficulty was increased by the presence of a street light on the Port Road and of two bright lights in Holdens Motor Body Works fronting the East side of the Port Road, which tended to confuse the observer. On the whole of the evidence, I find that considered as a warning of the approach of a train, the lighting of F class engines in general was inadequate." In support of the appeal from this decision it was contended on the part of the appellant commissioner that his duty of care was discharged by illuminating the train so that it could be seen by a careful and attentive driver about to cross and ensuring that it whistled audibly at a sufficient distance from the crossing. In considering whether adequate warning was provided at a level crossing over a public road all the circumstances of the locality and of the traffic passing over it and the conditions prevailing at the relevant time must be taken into consideration: Alchin v. Commissioner for Railways [1] . The duty of the commissioner is to do everything which in the circumstances is reasonably necessary to secure the safety of persons using the crossing: Cliff v. Midland Railway Co. [2] ; Ellis v. Great Western Railway Co. [3] ; Liddiatt v. Great Western Railway Co. [4] . This must include a duty to give reasonable warning of the approach of a train where the commissioner does not provide gates which are closed when a train is approaching. That duty is not fulfilled by providing means which would enable persons of acute vision and hearing exercising the most anxious care to avoid injury. The fact that all sorts and conditions of people use the highway must be taken into account, and, whilst the commissioner is not required to protect against their own carelessness people who proceed without any regard to their own safety, it is his duty to take every reasonable precaution to ensure that the level crossing will be safe for the members of the public generally who act with due care while exercising their rights of passing over it. 1. (1935) 35 S.R. (N.S.W.) 498, at p. 502; 52 W.N. 156. 2. (1870) L.R. 5 Q.B. 258, at p. 261. 3. (1874) L.R. 9 C.P. 551, at p. 555. 4. (1946) K.B. 545, at p. 550. We thought it proper, having heard the appeal, to follow the course taken by the learned judge and view the locality as a train passed over it at night. This view has enabled us to apply the evidence contained in the transcript with better understanding than would have been possible from a study of the plan. We find ourselves in agreement with the opinion of the learned judge that in the conditions prevailing at the time of the accident the level crossing was dangerous and that the appellant commissioner provided insufficient means of warning persons intending to cross of the approach of such a train as injured the plaintiffs. Since the accident warning bells have been installed and conditions are not now the same. But in the conditions which existed at the time of the accident as described by the witnesses and as disclosed by the view which we had of the locality, we think that the lighting of the train and the whistle were quite insufficient reasonably to ensure that those about to pass over the crossing were aware of the approach of the train. The noise of the train could not necessarily be heard, nor could the train always be clearly seen as it approached. In these circumstances the failure on the part of the husband and wife to see or hear the approaching train, having regard to the attempts they made to safeguard themselves, does not in our opinion imply contributory negligence on their part and we agree in the finding of the learned judge upon this issue. In our opinion the appeal should be dismissed with costs.