Doolan v Midland Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 17 January 1876 |
| Date | 17 January 1876 |
| Court | Exchequer Division |
Exch. Cham.
Before WHITESIDE, C. J., PALLES C. B., FITZGERALD, B., FITZGERALD, J. DEASY, B., BARRY, J., and DOWSE, B.
Peek v. The North Staffordshire Railway CompanyENR 10 H. L. C. 473.
Branley v. S. E. Railway CompanyENR 12 C. B. (N. S.) 63.
The East Anglian Railway Company v. The Eastern Counties Railway CompanyENR 11 C. B. (N. S.) 775.
Colman v. The Eastern Counties Railway CompanyENR 10 Beav. 1.
Aldridge v. The Great Western Railway CompanyENR 15 C. B. (N. S.) 582.
South Wales Railway Company v. RedmondENR 10 C. B. (N. S.) 675.
Alexander v. MalcolmsonUNKIR I. R. 3 C. L. 578.
le Conteur v. London and S. W. Railway CompanyELR L. R. 1 Q. B. 54.
Zunz v. S. Eastern Railway CompanyELR L. R. 4 Q. B. 539.
Alexander v. MalcomsonUNKUNKIRIR I. R. 2 C. L. 621; S. C. Exch. Cham. I. R. 3 C. L. 578.
Zunz v. S. E. Railway CompanyELR L. R. 4 Q. B. 539.
Per seELR Le Conteur v. London and South-Western Railway Company, L. R. 1 Q. B. 4.
Wheelton v. HardistyENR 8 E. & B. 285.
Moore v. Midland Railway CompanyUNK Ir. R. 8 C. L. 234.
Rooth v. North-Eastern Railway CompanyELR L. R. 2 Ex. 173.
Peek v. North Staffordshire Railway CompanyENR 10 H. L. C. 492.
Hinton v. Dibbin 2 Q. B. 646.
Railway Company Through-booking by rail and steamer 17 & 18 Vict. c. 31, s. 7 31 & 32 Vict c. 119, s. 16 34 & 35 Vict. c. 12 Condition as to the part of journey by sea.
Vok 1.] COMMON LAW SERIES. Upon all these grounds, I am of opinion the Plaintiff is not entitled to recover the value of the cow from the Defendants. Decree of the Becorder affirmed will; costs. Attorney for the Appellants : Ennis. Attorney for the Respondent : Byrne. 47 Q. Bench. 1875. GANLY V. LEDWIDGE. (EXCHEQUER CHAMBER) (1). Exch. C'ham. DOOLAN v. THE MIDLAND RAILWAY COMPANY. 1876. Jan. 17. .Railway Conzpany-Through-booking by rail and steamer-17 4, 18 Vict. c. 31, s. 7-31 4- 32 Vict. c. 119, s. 16-34 4. 35 Vict. c. 78, s. 12-Condition as to the part of journey by sea. A Railway Company contracted to carry goods " through" partly by railÂÂway and partly by sea, and to an action for loss of the goods pleaded a special condition exempting the Defendants from liability in respect of the negligence or unskilfulness of the captain and crew of a steamer (the property of and worked by a Steam-packet Company who had made arrangements with the Defendants for through-booking) which was lost through the negligence of the captain and crew :-Held, reversing the decision of the Common Pleas (WimEsim, C. J., Miss.), (1) that "The Railway and Canal Traffic Act, 1854" (17 & 18 Vict. c. 31, s. 7) did not apply ; and that the condition protected the Defendants : (2) that the 31 & 32 Vict. c. 119, and 34 & 35 Viet. c. 78, had not the effect of extending the provisions of s. 7 of the 17 & 18 Vict. c. 31 to that part of the carriage of the goods which was to be performed by sea. ERROR brought by the Defendants to reverse the judgment of the Court of Common Pleas, allowing the Plaintiff's demurrer to certain pleas and overruling the Defendant's demurrer to certain replications. APPEAL by the Defendants against the decision of the Court of Common Pleas discharging a conditional order obtained by the Defendants to set aside the verdict directed for the Plaintiff. The plaint contained five counts; the first, second, and third averring in substance a contract-made since the passing of the (1) Before WurrnsinE, C. J., PAL- BALD, J., DEASY, B., BARRY, J., and LES, C. B., FrrzoKo ALn, B., FrInGE- DOWSE, B. 48; THE, IRISH REPORTS. [I. R., Exch. Cham. 17 & 18 -Viet. c. 31, the 31 & 32 Viet. c. 119, and the 34 & 1876. Viet. c. 78-to carry cattle from Dublin to Liverpool and from DOOLAN thence by railway to St. Ives, and alleging, as a breach, the loss of the cattle : the fourth count was in trover and the fifth in detinue. Mm. DY. Co. The Defendants pleaded twenty pleas : (1) denying the contract; (2) a set of pleas averring in substance that the cattle were reÂÂceived, under a through-booking arrangement, to be carried from Dublin to Liverpool by sea and thence to St. Ives by land, subÂÂject to a condition (a) that the Defendants should not be responÂÂsible for any loss or damage arising from improper, careless, or unskilful navigation, or any default or negligence of the master or officers or crews of the steamer, and averring that the loss comÂÂplained of arose within the terms of the condition ; (3) a set of pleas similar to the latter, but averring that the condition was " reasonable;" (4) a set of pleas alleging in substance that the Defendants were not " authorized to build, or buy, or hire, or use, maintain, or work, or to enter into any arrangements for using, maintaining, or working steam vessels for the purpose of carrying on communications between Dublin and Liverpool ;" averring that the steamer in which the cattle were carried did not belong to, and (a) " The Company will not be acÂÂcountable for any injury to horses, catÂÂtle, or other live stock, while shipping, during the sea passage, or landing, but will give free passage by sea to the owners or others sent to take charge of such on the passage. "That with respect to any animals, luggage parcels, goods, or other artiÂÂcles booked through by them or their agents for conveyance partly by sea and partly by railway, or partly by canal and partly by sea, such animals, luggage parcels, goods, or other artiÂÂcles will only be so conveyed on the condition that the Company shall be exempt from liability for any loss or damages which may arise &ring the carriage of such animals, luggage parÂÂcels, goods, or other articles by sea, from the act of God, the Queen'senemies, fire, accidents from maÂÂchinery, boilers, and steam, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, in the same manner as if the Company had signed and delivered to the conÂÂsignor a bill of lading containing such condition. Nor will the Company be accountable or responsible for loss of, or any damage or injury to, animals,. goods, or property entrusted to them, arising from the dangers or accidents of the sea, or of steam navigation, the act of God, the Queen's enemies, jettison, barratry, collision, improper, careless, or unskilful navigation, acciÂÂdents connected with machinery or boilers, or any default or negligence of the master, or any of the officers or crews of the Company's vessels." VOL. X.] COMION LAW SERIES. 49 was not hired, used, maintained or worked by the Defendants; Exch. Chant. and relying upon the condition. 1876. To such of the pleas as averred that the condition was " rea- Doolaw sonable" the Plaintiff replied that it was " not reasonable ;" and MID. L. Co. to others of the pleas the Plaintiff demurred ; and the Defendants demurred to the replication. The Court of Common Pleas overÂÂruled the demurrers to the replications, and allowed the demurrers to the pleas. The present proceeding in Error was brought to reverse that decision. The issues in fact were tried before PALLES, C. B., at the KilÂÂdare Summer Assizes, 1874. THE CHIEF BARON left it to the jury to say whether the loss was caused by the Defendants' negligence, or by dangers of the seas, and they found that it was caused by the negligence of the Defendants. Neither party asked to have any other question left to the jury. THE CHIEF BARON told the jury that the contract, to the exÂÂtent of any just and reasonable conditions contained therein, bound the Plaintiff ; and he ruled, in accordance with the decision of the Court in banco on the demurrer, that the contract was within the 17 & 18 Vict. c. 31, s. 7 (1) : he also held that the conditions, so far as they purported to exempt the Defendants from liability for loss through the negligence of their servants, were unjust and unreasonable, and he therefore directed a verdict for the Plaintiff on the first, second, and third counts (i. e. those in oontract), and for the Defendants on the counts in trover and detinue. The jury found 765 damages on the first, second, and third counts : and THE CHIEF BARON reserved liberty to the Defendants to move to have a verdict entered for them on those counts, if he should have so directed without leaving any question to the jury. A conditional order having been obtained pursuant to the leave reserved, the Court of Common Pleas discharged the conditional (1) See Moore v. The Midland Railway Company, I. R. 8 C. L. 234, which was similar to the present case. VOL. X. so 111E IRISH 11.EPORTS. [I. R. Exch. Chan. order (1), and against that decision the present appeal was 1876. brought. The proceeding in Error and the appeal were argued and dis Mto. ItY. Co. posed of together. Walker, Q. C., Dames, Q. C., and Robertson, for the Appellants. This case does not fall within the provisions of the 7th section of the Railway and Canal Traffic Act of 1854. It was only the preceding sections, not the 7th, of that Act which were incorpoÂÂrated by section 16 of 31 & 32 Viet. e. 119. As to the 12th section of 34 & 35 Viet. c. 78, it only places the Railway Company in the same position as owners of vessels, that is, it incorporates the sections of the Merchant Shipping Act dealing with the liability of ship-owners. The Railway and Canal Traffic Act of 1854 is only applicable to acts done on the limits of the company's line of rail, not to what is done beyond it. They cited Peek v. The North Staffordshire Railway Company (2) ; Branley v. S. E. Railway Company (3) ; The East Anglian Railway Company v. The Eastern Counties Railway Company (4) ; Colman v. The Eastern Counties Railway Company (5) ; Alciridge v. The Great Western RailÂÂway Company (6) ; South Wales Railway Company v. Redmond (7); Alexander v. Makolmson (8) ; Le Conteur v. London and S. W. RailÂÂway Company (9) ; Zunz v. S. Eastern Railway Company (10). Maedonogh, Q. C., Byrne, Q. C., and Molloy, for the Respondents, relied on...
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