Commissioner for Railways v Dowle [1958] HCA 15

High Court of Australia Dixon C.J. McTiernan, Fullagar and Taylor JJ. Commissioner for Railways v Dowle [1958] HCA 15

ORDER Appeal dismissed with costs.

The oral judgment of the Court was delivered by Dixon C.J.

Dixon C.J., McTiernan, Fullagar and Taylor JJ.

We have had an opportunity of considering this case and we think that it is unnecessary to hear the respondent to the appeal, being satisfied that the appeal should be dismissed.

The appeal arises out of an accident which occurred as long ago as 20th July 1953. The site of the accident was a level crossing. A railway line runs from Clyde Junction to its terminus at Carlingford, passing through some four stations on the way; the line referred to is where the line crosses a street called Aston Street. The railway is a double line and along this stretch it runs north-east to south-west, not a very accurate statement perhaps in terms of the points of the compass, but sufficient for these purposes. The road runs north and south.

On the date that I have mentioned the plaintiff's husband was proceeding in a four-ton truck south along Aston Street in daylight. He met his death by being run down at the crossing by a train which was on the up-line travelling south-westerly. The circumstances of the accident will best appear from a description of the place. Aston Street meets the railway at an angle which we have not measured but which looks on the plan to be about 35 degrees. At a position where it approaches the down side of the railway there were halt signs. The halt sign on the left-hand side of the road—that is to say on the easterly side—shows conspicuously enough that there is a railway crossing and that vehicles should halt. Measurements are given in the plan before us and the measurement from the halt sign to the up rails of the crossing is about 60 feet, to be accurate, 57 feet, 6 inches. The roadway is a tarred surface and between the roadway, which is, substantially, a straight stretch, and the railway, there appears to have been no obstruction to the vision. The railway also runs substantially in a straight line, and down the line, i.e. north of the level crossing in question, at a distance from the crossing of approximately 260 yards there is a small crossing called Unwin Street.