Appeals in civil cases-judgment
based on views of judge without
evidence from witnesses.
The case arose out of the death
of a locomotive driver in the
service of the appellants; it
was brought by the
administratrix of his estate
claiming damages for negligence
imputed to the Company or their
servants: (there was also an
action for the benefit of the
children, to abide by the
decision on the other).
There was a siding and at the
end of it, 23 ft. from the rail
catch point, a cross bar. The
length of the engine was 9 ft.
10 in., and the engine could
have been stopped just clear of
the points and some distance
short of the cross-bar. In this
instance, it ran on at a speed
sufficient to get jammed under
the cross-bar; the brakes were
off and probably the engine was
out of gear. The locomotive was
going with the driver's seat
towards the cross-bar; it was an
open seat on an open platform;
and he had a clear view and
might have jumped off if
attentive.
The trial Judge was satisfied
that the principal cause of the
accident was the deceased's lack
of care in not keeping a proper
look-out and applying his brakes
in time, and that the cross-bar
was not in itself dangerous and
did not need to be fenced (as
alleged in the statement of
claim). But he went on to
consider whether the distance
provided between the catch
points and the cross-bar was
reasonably adequate for stopping
beyond the points in safety
before colliding with the
cross-bar. That distance he
thought was ample for a European
or equally alert African driver
but, speaking from his own
knowledge of Africans, he was
certain it was not safe for the
average African driver, whose
appreciation of a situation and
reaction was slower. Damages
were awarded, and the Company
appealed.
Held: It was plain from the
evidence that the accident was
due to the deceased's own
negligence, and the trial Judge
having so found, erred in law in
applying his personal judgment
and experience and basing his
decision on what was not
evidence in the case.
Appeal from Supreme Court by
defendants: Nos. 10 (and 11) of
1952 .
Miss F.
C.
Wright
for Appellants.
A. AI. Margai
for Respondent.
The following judgment was
delivered:
Coussey, j.A.
This is an appeal by the
defendants, in two actions in
which it \\"as agreed at the
trial that the decision in one
should govern the decision in
the other. In Suit No. 369/49
the plaintiff, who sued as
Administratrix of the Estate of
Christopher 1\1. Taylor
(Deceased), claimed on behalf of
the estate of the deceased,
damages for his death from
injuries received while on duty
in the defendants' service
operating a locomotive which was
badly constructed and/or
maintained through the
negligence of the defendants'
Company or their servants.
The claim in Suit No. 372/49 is
a similar one against the same
defendants, and is stated to be
made for the benefit of the
children of the deceased as his
dependants. According to the
particulars filed in Suit No.
372/49 the deceased was
operating a locomotive running
on rails which passed under a
steel cross-bar.
[pg 137]
The shorter end of the
locomotive faced the cross-bar
in its running position instead
of the longer end, where the
cowling of the engine was fixed.
The seat, from which the
deceased operated the engine was
foremost, that is to say, it
would reach the cross-bar before
the cowling of the engine. The
cross-bar was not fenced nor was
there any automatic device to
check the engine nor was there
anything to prevent the driver
coming into contact with the
cross-bar as provided by law.
The plaintiff further averred
that the brake system of the
engine was not regularly tested
or adjusted and that no device
was provided to protect the
driver from danger as required
by law. In consequence of this,
according to the plaintiff, the
deceased was crushed to death
when the engine ran into the
steel cross-bar.
By their defence, which is the
same in both actions, the
defendant Company denied the
negligence alleged or that the
deceased's injury and death were
caused by any of the matters in
the Statement of Claim or the
particulars alleged. The
defendants further pleaded that
the locomotive was constructed
with reversible gears so that it
could travel in either
direction. They denied that the
brakes were not regularly tested
or adjusted and they further
denied that they were under any
obligation or duty to fence the
cross-bar, or that any Ordinance
or Regulation for the safety of
the driver of the locomotive had
been contravened, and they
averred that there was
contributory negligence on the
part of the deceased in driving
at an excessive speed and
failing to stop the engine after
crossing the change points on
the rails whereby the engine
came into contact with the
cross-bar, although the brakes
were in good order.
The following facts were found
by the learned trial Judge:-
The deceased (Taylor) was killed
in a collision between the
engine and the steel cross-bar
at the end of the siding. The
locomotive had a diesel engine
and three gears driving all four
wheels and a ratchet brake
operating on one pair of wheels.
The engine cowling was at one
end of the locomotive and the
driver sat at the other end
facing sideways, on an open
seat, on an open platform. He
had a clear view all round in
the direction facing the steel
cross-bar. At the time of the
accident the engine was running
with the driver's seat first
towards the cross-bar. The
overall length of the engine was
9 ft. 10 in. The maximum speed
of the locomotive in top gear
was about 9 miles an hour. The
distance found by the learned
trial Judge between the rail
catch point and the cross-bar
was 23 feet. The engine could,
ordinarily, be pulled up within
a short distance when travelling
unloaded on the level and it
could, in an emergency, be
stopped within 2 or 3 feet by
shutting off the throttle and
applying the brakes with the
engine in gear so that the
compression of the engine would
act as an additional brake. The
track between the points and the
gate-head or cross-bar was on a
slight up grade. When the
locomotive, driven by the
deceased, came down the loop
line and crossed the catch
points it would normally,
according to the usual practice,
have been stopped by the
deceased just clear of the
points and some distance short
of the cross-bar; but, for some
reason, in this instance, the
engine ran on at a speed
sufficient to get jammed firmly
under the cross-bar. The brakes
were off, and the learned Judge
also found that probably, the
engine was out of gear at the
time of impact with the
cross-bar.
After finding these facts the
learned Judge found that the
position in which the deceased
must have been sitting, and the
view he had, satisfied the
learned Judge that even if, for
some mysterious cause, the
driver found himself unable to
stop the engine in time, he
would at least have had
opportunity of jumping clear if
he had been paying proper
attention to what he was doing.
The learned Judge was satisfied,
on the evidence before him, that
the principal cause of the
accident was the deceased's own
lack of care in failing to keep
a proper look-out and to apply
his brakes in time. But the
learned Judge, after further
finding that the gate-head or
cross-bar was not itself a
dangerous piece of machinery,
[pg 138]
and that it did not need
to be fenced-it was in fact
similar to the buffers at a
railway terminus beyond which a
locomotive is not expected to
travel-considered whether the
distance provided by the
defendant Company between the
rail catch points and the
gate-head or cross-bar was
reasonably adequate to enable
the locomotive to pass the
points and be stopped in safety
before colliding with the
cross-bar. The learned judge
confessed that he found himself
in some difficulty in deciding
whether a safe system had been
provided by the defendants and
he then proceeded to hold that:-
" If the safety distance is to
be determined in terms of a
European locomotive driver or an
equally alert African driver, I
should unhesitatingly say that
it was ample, but I have known
Africans for many years and I
know perfectly well that the
average African driver of motor
vehicles, and I assume of
locomotives as well, is much
slower when driving, in
appreciating that he has to do
something and in deciding what
he should do and in doing it. In
other words he has a much
greater time lag between the
arising of an emergency and the
completion of the action to meet
it. So that a distance that
would be considered safe for the
average European driver is not
necessarily safe for the average
African driver." and he
continued:-
" I know of no statistics which
give any guide as to what the
difference between the two
average types is and I must
determine it to the best of my
own experience and judgment, and
in this case I hold that
although the distance was
sufficient if the locomotive was
so travelling that the cowling
took the first impact it was not
sufficient with the locomotive
pointing the other way so that
the driver himself first hit the
gate-head.
" 'With respect, in my opinion,
the learned judge erred in
applying his own judgment and
experience of African and
European motor drivers to find
that what would be a safe system
for a European or alert African
locomotive driver would not be a
safe system for an average
African locomotive driver. No
evidence was given at the trial
to establish different standards
of care and attention as between
different classes of drivers.
Despite the fundamental finding
already referred to that the
principal cause of the accident
was the deceased's own lack of
care in failing to keep a proper
look-out and to apply the brakes
in time, the learned judge
himself, in effect, gave
evidence in order to establish
the standard of safety which in
his opinion the defendants were
required to provide for the
deceased, without affording the
defendants an opportunity to
cross-examine his knowledge or
experience of drivers.
Unfortunately there has been,
therefore, an error in law in
that the learned judge has
applied his own personal
knowledge and experience and the
operative part of the judgment
is based on evidence not on
record; in other words, not on
legal evidence. It cannot be
overlooked that on many previous
occasions the deceased had
driven across the catch points
and brought up his engine
successfully, short of the steel
cross-bar; an operation which he
must have repeated frequently,
probably many times daily. On
the occasion in question,
however, the speed, and the
position of the gears and the
brakes all suggest the
negligence of the deceased,
which no degree of safeguards
would have averted.
For these reasons, in my
opinion, there has been an error
in the actual determination of
the facts in issue and the
appeal must be allowed.
