Tort-Negligence-Accident-Plaintijj not exercising reasonable care.

The case arose out of an accident in the dark at a level crossing. A little higher up the line passed through a cutting which blanketed the sound of whistling; there was tall grass obscuring vision; and instead of electric lights, the engine had a kerosene lamp on it. A goods train moving slowly down the gradient on its own momentum came upon the plaintiff's car on the crossing ­ neither the engine driver nor the fireman saw it-and pushed it down the line for some distance. The plaintiff sued for damages. The plaintiff had often passed over the crossing. There was a board there with the words "Stop Dangerous Level Crossing ", known to him. On this occasion it appears that seeing no light he did not stop but moved on slowly in low gear. The trial Judge was of opinion that had the plaintiff stopped, he would have heard the train coming and seen its black form against the sky-line; the train would have been up to the crossing before he could have reached it, and the accident could have been avoided.

The plaintiff appealed from the judgment in defendant's favour.

Held: The whistling ought to have been kept up to the crossing as the engine had no light visible a reasonable distance away, but the fact remained that it was the appellant's own failure to take the reasonable care of stopping at what he knew was a dangerous crossing which resulted in the accident.

Case cited:-

Swadling v. Cooper (1931), A.C. 1.

Appeal from the Supreme Court by plaintiff: No. 3655.

G. B. A. Coker, with him A. Okubadejo, for the Appellant.

de Winton, Crown Counsel, for the Respondent.

The following judgment was delivered:

Foster-Sutton, P. At about 7.30 p.m. on the 13th March, 1950, the plaintiff ­ appellant was driving his Standard Vanguard motor car from his residence in the new Reservation, Ibadan, with the intention of visiting the new site for the Ibadan University. He decided to take a route which entailed his leaving the main Lagos-Ibadan road-some hundreds of yards before the town of Ibadan, turning left and crossing a railway level crossing which is at right angles to the main road.

Some feet away from the near rail there is a large wooden sign board placed parallel to the railway lines and the main road with the inscription "STOP DANGEROUS LEVEL CROSSING". The appellant admitted that he knew of the existence of this sign, that he had passed over the level crossing on other occasions and was fully conversant with it.

It was a pitch dark night and the Vanguard's head-lights were on. The appellant changed down into secon1 gear on approaching the level crossing. He admitted that he did not stop his car, but said, " I looked and saw nothing and proceeded to crawl over the crossing ", and while doing so his motor car was struck by the engine of a goods train and carried some 400 feet down the railway line. The goods train was coming from the direction of Ibadan station. [pg 93]

As a result of the collision the appellant's motor car was rendered useless and the appellant suffered some personal injury.

The appellant sued the respondents claiming damages, alleging the following acts of negligence:-

(i) driving "their train with an engine having no lights on and keeping no proper look out;

(ii) failing to whistle or give other warning of the approach of the train; and

(iii) failing to keep a postern or gates at the railway level crossing.

The learned trial Judge found the following facts:-

" The plaintiff at the time of the collision was driving his car at a speed not exceeding 10 miles an hour. He knew of the existence of the sign" STOP DANGEROUS LEVEL CROSSING". He failed to stop his car on approaching the level crossing. He did not hear the whistle of the engine. That the driver of the engine blew his whistle three times. That the train was travelling at about 5 miles an hour or at the very most 10 miles an hour. That the engine had on a lighted kerosene lamp on the smoke box. That the kerosene lamp did not throw a beam of light. That the kerosene lamp was capable of remaining lighted from three to five minutes only. That there was a certain amount of grass on the bank obscuring vision. That the visibility from the road is not more than 300 feet towards the station."

It was not suggested by appellant's Counsel that the findings of fact to which I have referred were not reasonable, but the finding that the visibility from the main road towards the station is not more than 300 feet appears to have been based upon the trial Judge's own observation when he visited the scene of the accident in daylight, accompanied by Counsel, the plaintiff and two representa­tives of the Railway. The trial Judge himself says" as the accident occurred at about 7.30 p.m. the tests of visibility for daylight cannot be applied ", and a police officer gave evidence that" at the crossing the visibility is poor. You cannot see a train until it is quite close to you". It would seem, therefore, that the visibility on the night in question would have been much less than was assumed by the learned trial Judge.

Coming from lbadan station the train had to enter a cutting with a curve with high banks on both sides which gradually diminish to the level of the road at the crossing. The last blast on the whistle appears to have been given when the engine was passing the running shed. The evidence as to the distance the shed is from the level crossing was conflicting, but it seems clear that it is at least 60 yards and there is evidence that the cutting has the effect of " blanketing the noise ". Moreover the steam had been shut off because there is a down gradient coming from the station to the level crossing and the train was travelling on its own momentum. The noise of the engine would, therefore, have been lessened.

Neither the engine driver nor fireman saw the appellant's motor car before the accident, but their failure to do so had no influence on the collision because the evidence discloses that the train could not have pulled up before it did, that is to say approximately 400 feet beyond the level crossing.

The railway authorities require an engine to have a head lamp when travelling at night which can be either electric, kerosene or carbide. It would appear, however, that the normal practice is to have an electric one which throws a beam of light for a considerable distance. On this occasion the electric lamp was out of order and the kerosene one was placed on the front of the smoke box as a temporary replacement.

After considering the law applicable to a case such as this and reviewing the evidence the learned trial Judge concluded his judgment by saying:- [pg 94]

" I am quite satisfied that the plaintiff expected to see an beam from an electric light on the engine and not having seen one decided not to stop but to proceed at slow speed.

" It is a fact that the car and the train were on that evening travelling at approximately the same speed. Taking that speed at 10 miles an hour or 14.6 feet per second-although his witness stated 5 miles an hour-the train and the car were, shortly before the collision, equidistant from the crossing. In other words when the car was 15 feet from the crossing the engine of the train was also 15 feet from the crossing. Had the plaintiff stopped as indicated by the sign even for a second he would have been able to hear the noise from the train and would have been able to see the black form of the train against the skyline. Also the train would have been up to the level crossing before he could have reached it and the accident could have been avoided.

" I can find from the evidence no negligence on the part of the defendant's servants. The bare fact that no gates were at the crossing and that the kerosene light was used that evening are in my opinion not in themselves acts of negligence. In the case of the former whether there arc gates or not over crossings, in so far as railways arc concerned, the common law doctrine of reasonable care applies and in the case of the lighting of engines these are governed by statutory provisions."

Although I agree with the learned trial Judge's decision in the case, I am unable to subscribe to the proposition that the respondents can be absolved from all negligence in this matter.

A duty or obligation clearly existed on the part of the railway company and those using the road across the level crossing towards each other. The duty is that which is cast upon all persons either using the same road, or crossing each other's path, to use reasonable care in the use and exercise of their own right, not to injure others who are similarly using their rights. The question regarding the amount of care it is a person's duty to exercise must depend on the particular facts of each case.

It is clear from the evidence that the train, even although it was travelling at the moderate speed of 5 to 10 miles an hour, could not be brought to a stand­still in under approximately 400 feet. The visibility in daylight is not more than about 300 feet and on a dark night would obviously be very much less. It seems to me, therefore, that it was the duty of the respondents, in the absence of a light on the front of the engine which could be seen a reasonable distance away, to ensure that the train's whistle was blown repeatedly right up to the level crossing. Their failure to do so, in my view, constituted a breach of duty to a person using the level crossing, and negligence.

The learned trial Judge stated that the lighting of engines is governed by statutory provisions, but they are merely rules laid down by the railway authority providing for the procedure to be adopted by its own employees.

In order to succeed, however, in his claim against the respondents the appellant had to establish not only that they were negligent, but that their negligence caused the collision of which he complained. If the appellant could have avoided the collision by the exercise of reasonable care he could not succeed in his claim because his injury would then be the result of his own negligence in failing to take reasonable care, and he would be the author of his own wrong. That this is the correct test to apply is clearly reaffirmed in the case of SwadJing v. Cooper (1).                                             Ii

The appellant knew the dangerous nature of the level crossing and of the respondent's notice to users of it warning them to stop. In my opinion the evidence justified the learned trial Judge's conclusion that had the appellant stopped his motor car before attempting to proceed across the railway lines he [pg 95] would have seen and heard the train. As it was he chose to take a chancel Probably, as the learned trial Judge said, because he did not see any beam fro an electric light coming down the railway line.

It follows that, in my view, the injuries and damage suffered by the appellant were the outcome of his own negligence and not that of the respondents. I would therefore, dismiss this appeal with costs.

de Comarmond, Ag. C.]. I concur.

Coussey, J.A. I concur.

We fix the costs at £19 10s. ad. Appeal dismissed.

[pg 96]