Roeder v Commissioner for Railways (NSW) [1938] HCA 36

60 C.L.R.] OF AUSTRALIA. 305

(HIGH COURT OF AUSTRALIA.)

ROEDER girtoe isin ett» ; , b . APPELLANT ; PLAINTIFF,

AND

THE COMMISSIONER FOR RAILWAYS (NEW SOUTH WALES). . DerFenDANT,

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Negligence—Contributory negligence—Railway—Personal injury—Passenger protrud- YW. (. or A. ing elbow from window of railway carriage—Injury to elbow—Direction to jury 938, —Accuracy—Sufficiency.

Ia passenger travelling by train allows his arm to project through a window Bee pril 7

beyond the line of the outer wall of the carriage, and is injured by contact with "71,13 some object whose presence is due to the negligence of the railway servants, the question for the jury to decide, under the heading of contributory negligence, [a'hw Cl is whether in the given circumstances a man paying ordinary reasonable Dixon cu regard to his own safety would not have had his arm out; the question of contributory negligence is not necessarily to be concluded against the plaintiff by reference solely to the fact that his arm was projecting, or the distance

to which it was projecting.

A passenger, seated next to an open window in a train, was struck a violent blow on his arm while a goods train was passing in the opposite direction. In an action for damages for negligence brought against the Commissioner for Railways of New South Wales, the trial judge summed up in a manner which in the view of Rich, Dixon and Evatt JJ. conveyed that the question of contributory negligence should be decided against the plaintiff if the plaintiff's elbow was projecting more than one or two inches from the edge of the carriage in which he was travelling and did not explain the considerations upon which the

H. C. or A. 1938. ae

RoEDER e Comms: SIONER FOR Ratuways (N.

HIGH COURT [1938.