Alton v The Midland Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1865 |
| Date | 07 June 1865 |
| Court | Court of Common Pleas |
English Reports Citation: 144 E.R. 768
IN THE COURT OF COMMON PLEAS, IN THE EXCHEQUER CHAMBER
S. C. 34 L. J. C. P. 292; 12 L. T. 703; 11 Jur. N. S. 672; 13 W. R. 918. Discussed, Potter v. Metropolitan Railway, 1874, 32 L. T. 37; Bradshaw v. Lancashire and Yorkshire Railway, 1875, L. R. 10 C. P. 191. Referred to, Dickson v. Reuter's Telegraph Company, 1877, 2 C. P. D. 70; 3 C. P. D. 1. Principle applied, Daly v. Dublin, Wicklow and Wexford Railway, 1892, 30 L. R. Ir. 520. Discussed, Taylor v. Manchester, Sheffield and Lincolnshire Railway, [1895] 1 Q. B. 134. Distinguished, Meux v. Great Eastern Railway, [1895] 2 Q. B. 391.
[213] alton and another v. the midland eailway company. June 7th, 1865. [S. C. 34 L. J. C. P. 292 ; 12 L. T. 703 ; 11 Jur. N. S. 672 ; 13 W. R. 918. Discussed, Potter v. Metropolitan Railway, 1874, 32 L. T. 37 ; Hradshaw v. Lancashire and Yorkshire Railway, 1875, L. R. 10 C. P. 191. Referred to, JHckson v. Heater's Telegraph Company, 1877, 2 C. P. D. 70; 3 C. P. D. 1. Principle applied, Daly v. Dublin, Wicklow arid Wexfard Railway, 1892, 30 L. K. Ir. 520. Discussed, Taylor v, ' (a) In Ke\tle v. Bromsall, Willes, 1 1 8, Serjt. Comyns cited Buckmere's casef 8 (Jo. Rep. 87 b., toj shew that trover and detinue cannot be joined, - " because they tequfre different pleas,." To this Mr. Durnford adds a note, - " Not only the pleas, but the j mlgmenls alsoj are different : in trover, only damages can be recovered, but in detinue the things themselves, or their value, may be recovered. And two counts cannot be joined in the same declaration, unless the same judgment may be given on. both : Btvwn v. Dtim, 1 T. R. 274. See also Gilb. Hist. C. B. 6, 7." 19C,B.OT.S.)2M. ALTON V. THE MIDLAND ELY. CO. 769 Chester, Sheffield and Lincolnshire Railway, [189;")] 1 (^. B. 134. Distinguished, Meia, v. Gh'eat Eastern Railway, [1895J 2 Q. B." 391.] 1. One who is up party to a contract cannot sue in respect of the breach of a duty arising out of the contract.-2. An action will not lie against a railway company, as carriers oi passengers for hire, at the suit of a master, for a personal injury sustained through their negligence by his servant, whereby the master lost the benefit of the services of the servant,-the contract out of which arose the duty to carry safely being a contract between the company and the servant. This was an action by the plaintiffs, who were brewers, against the Midland Kail-way Company, for the loss of the services of a traveller in their employ, through the defendants' negligence. The deckirution stated that one Charles Thomas Baxter, before and at the time of the committing of the grievances thereinafter mentioned, was, and from thence hitherto had continued, and still was, the servant and traveller of the plaintiffs in their business of brewers and otherwise; that the defendants were carriers of passengers upon a certain railway, to wit, the Midland railway, from a certain station of the defendants at Trent to a certain other station of the defendants at Nottingham, for hire and reward to the defendants ; that the said 0. T. Baxter, so being the servant and traveller of the plaintiffs as aforesaid, became and was received by the defendants as a passenger to be by them safely and securely carried upon the said railway on a journey from the said station of the defendants at Trent to the said station of the defendants at Nottingham, for hire and reward to the defendants on that behalf; that thereupon it became and was the duty of the defendants to use due and proper care and diligence in and about the carriage and conveyance of the said C. T. Baxter, so being such servant and traveller of the plaintiff's as aforesaid, upon the said railway, on the said journey : yet that the defendants did not safely and securely carry the said C. T. Baxter-, so being such servant and traveller of the plaintiffs as aforesaid, upon the said railway, on the said journey, and did not use due and [214] proper care and diligence in and about the carriage and conveyance of the said C. T. Baxter, so being such servant and traveller of the plaintiffs as aforesaid; and by their servants so negligently, unskilfully, carelessly, and improperly behaved and conducted themselves in that behalf, that the said C. T. Baxter, so being such servant and traveller of the plaintiffs as aforesaid, was thereby and by reason of the negligence, carelessness, unskilfulness, and improper conduct of the defendants and their servants, wounded and injured, and became and was sick, disabled, and unable to attend to the necessary business of the plaintiffs, about which he was employed at the time of the injuries complained of, and so remained from thence for a long time, to wit, for nineteen weeks ; whereby the plaintiffs during all such time lost the services of the said C. T. Baxter in their said business, and all benefits and advantages which would otherwise have accrued to them from such services, and the said business of the plaintiffs so carried on by the said C. T. Baxter suffered great loss and injury, and the plaintiffs were by reason of the premises, and of the wrongful and improper conduct of the defendants, otherwise injured and damnified : Claim, 5001. To this declaration, the defendants pleaded that they contracted with the said C. T. Baxter: to carry him as such passenger as in the declaration mentioned, on the said journey; and that they received him as in the declaration mentioned under jind by virtue of tbat contract, and they did not contract with the plaintiffs to carry ;the said C. T. Baxter; and that the matter complained of in the declaration was not a breach of any contract between the defendants and the plaintiffs, but was a breach of the said contract between the defendants and the said C. T. Baxter. The defendants also demurred to the declaration, [215] the ground of demurrer stated in the margin being, " that the defendants are not liable to third persons for breach of the contract between their passenger and themselves." Joinder. The plaintiffs took issue on the plea, and also demurred thereto, alleging for ground " that the facts stated in the plea afford no answer to the action." Joinder. David Keane, Q. C. (with whom was Graham), for the plaintiff's (a). The question (a) The points marked for argument on the part of the plaintiffs were as follow^ :- " 1. That a duty is imposed by law on the defendants, as carriers of passengers, to carry with clue and proper care all persons who are lawfully travelling on their C. P. xxii.-25 7710 ALTON V. THE MIDLAND RLY. CO. 19 C. B. (H. S.)216. is, whether a, railway company whose servants have been guilty of negligence in carrying as a passenger a servant of a manufacturer, is liable to the latter for the injury which, has deprived him of his services. Eailway companies, who hold themselves out as darners of passengers or goods, are sub-[216]-ject to all the liabilities of common carriers: Chitty & Temple on Carriers, 16, 17; Hodges on Railways, 4th edit,. 501; Garpue v. The London and Brighton Railway Company, 5 Q. B. 747; Crouch v. The London and North-ffestern Railway Company, 14 C. B. 255. The 86th section of the 8 & 9 Viet. c. 20, which enacts that " it shall be lawful for the company to use and employ locomotive engines or other moving power, and carriages and waggons to be drawn of propelled thereby, and to carry and convey upon the railway all such passengers and goods as shall be offered to them for that rntrpase., and to make such reasonable charges in respect thereof as they may from time to time determine upon, not exceeding the tolls by the special act authorized to be taken by them," contains a pretty accurate description of :the duties of common carriers. Proof of a contract is not necessary to support an action against common carriers; they might be sued in an action on the case for the injury as arising ex delicto, and such an action is not necessarily to be considered astounded on contract: Bretherton v. Wood, 6 J. B. Moore, 141, 9 Price, 408, 3 Brod. fe B. 54. Their duty is independent of any contract made by them: Pozzi v. Shipton, 8 Ad. & E. 963, 1 P. & D. 4. That explains away some of the difficulties raised by the plea. In Marshall v. The Yoi'k, Newcastle, and Berwick Railway Company, 11 C. B. 655, a declaration iu case against a railway company for the loss of a passenger's luggage, stated that the defendants received the passenger to be safely carried, together with his luggage, " for reward to the defendants in that behalf:" it then alleged that it was the defendants' duty safely and securely to carry the plaintiff and hia luggage, and averred a breach of that duty, whereby the luggage was lost: and it was held that, the action being founded on the breach of duty, and not on con-[217]-tract, it was not necessary to allege or to prove that the reward waa to be paid by the plaintiff; but that the plaintiff waa entitled to recover, although it appeared that the fare was paid by the plaintiff's master, with whom he was travelling at the time. In Tattan v. The Great Western Railway Company, 2 Ellis & Ellis, 844, it was held that an. action against a common carrier for the breach of his duty to carry safely goods delivered to him as such to be carried for hire, whereby the goods are lost, is an Action, not of contract, but of tort, in substance as well as in form ; the duty being imposed upon him by the custom of the realm, and being distinct from and independent of hia obligation under the contract of carriage, in respect of which latter he might also be sued in an action of contract: and therefore that the plaintiff, in an action against a common carrier for the breach of the duty in question, brought in a superior court-to recover a sum not exceeding 201., is not deprived of his costs by the 19 & 20 Viet. c. 10&, s. 30, if the defendant suffers judgment by default, for that the action is not...
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