Edwards v Railway Executive
| Jurisdiction | England & Wales |
| Judge | Lord Porter,Lord Goddard,Lord Oaksey,Lord Morton of Henryton,Lord Reid |
| Judgment Date | 11 July 1952 |
| Judgment citation (vLex) | [1952] UKHL J0711-2 |
| Date | 11 July 1952 |
| Court | House of Lords |
[1952] UKHL J0711-2
House of Lords
Lord Porter
Lord Goddard
Lord Oaksey
Lord Morton of Henryton
Lord Reid
Upon Report from the Appellate Committee, to whom was referred the Cause Edwards (by his next friend) and another against Railway Executive, that the Committee had heard Counsel, as well on Monday the 5th. as on Tuesday the 6th, Wednesday the 7th and Thursday the 8th. days of May last, upon the Petition and Appeal of Terence Edwards, an infant (by his father and next friend William Edwards) and William Edwards, both of 17 Rancliffe Gardens, Eltham. in the County of London, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 25th of July 1951. so far as therein stated to be appealed against, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Railway Executive, lodged in answer to the said Appeal ; and due consideration had this day of what was offered on either side in this Cause.
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of His late Majesty's Court of Appeal, of the 25th day of July 1951, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be. and the same is hereby, dismissed this House.
My Lords,
This is an appeal by the Appellants from an Order of the Court of Appeal allowing an appeal by the Respondents from, and setting aside the verdict and judgment directed to be entered in favour of, the Appellants against the Respondents on the trial of an action before Jones, J., and a Jury. The Appellants were Plaintiffs and the Defendants were the Mayor Aldermen and Councillors of the Metropolitan Borough of Woolwich as first Defendants and the Respondents the Railway Executive as second Defendants. The first Defendants were successful in both Courts below and are not concerned in this appeal.
The Appellants' claim arose from an accident suffered by the infant Appellant, Terence Edwards, on the 15th July, 1947, whilst he was upon the Respondents' railway line at Eltham in the County of Kent. He was then aged 9 years and he sustained electric burns and shock from contact with a live electric rail upon the up line of the Respondents' railway and lost his right arm close to the shoulder owing to the subsequent passage over it by a train of the Respondents which was travelling along that line.
The place at which the accident occurred was a section of the Respondents' railway between Eltham in the east and Kidbrooke in the west where there was a double track of lines laid upon the top of a steep embankment which formed part of the premises of the Respondents. At the foot of this embankment on its northern side there ran immediately alongside the railway's property for a distance of about 1,000 yards a public recreation ground and children's playground controlled by the Mayor and Corporation of Woolwich. Between the embankment and the recreation ground a fence had been erected by the Respondents consisting of concrete posts holding strands of wire which were passed through the posts and fixed in position by split-pins.
The Appellants based their claim upon an allegation that the Respondents knew that the embankment and lines constituted a lure or attraction for children, that children frequently passed from the recreation ground to the embankment and lines to play and slide, and that, notwithstanding this knowledge, they failed to take any proper steps to prevent children from going on to the embankment and the lines or to warn children against the danger of so doing; that in these circumstances the Respondents permitted children to come upon their premises as licensees and failed to guard them against dangers of which they well knew; that they were in breach of duty under the Act of 8 & 9 Vict. Ch. 20 s. 68 (Railway Clauses (Consolidation) Act, 1845) in failing properly to fence the railway, and (by amendment) further alleged that the Respondents' servant the driver of the train which passed over the infant Appellant was negligent in failing to see him or in failing to stop the train in time to avoid him.
The Respondents denied the Plaintiffs' allegations and contended that the infant Appellant was a trespasser and that the Respondents their servants and agents were not in breach of any duty owed to the infant Appellant as such.
In order to establish the Appellants' case evidence was called which (if believed, as it was believed by the Jury) proved that for many years before the accident children had from time to time been accustomed to climb through the fence and to toboggan down the embankment near where the accident occurred. This they did by pulling out the split-pins which attached the wire of the fence to its posts and by trampling on or breaking the wire itself.
There was some evidence that children had been known to climb on to the embankment from other places, but it was somewhat vague in character and is, in my opinion, irrelevant to the decision of the present case.
The infant Appellant had never himself been previously on the embankment and apparently had no knowledge of the practice of sliding down it or, indeed, that other children were accustomed to go there.
The fence itself was repaired when it was observed to have been interfered with, both by the employee of the Woolwich Corporation who was in charge of the playground and by an employee of the Respondents. It appears that frequent repairs were required.
There was evidence, however, that on the morning of the 15th July, 1947, the fence was in proper repair and no evidence to the contrary.
The accident occurred at about 7.30 p.m. on that day. Shortly before this time the infant Plaintiff and three other boys, two named Connor and one named Gooch, were playing in the recreation ground with a ball. Someone then threw or kicked the ball up the embankment and the four boys went through the fence either to fetch the ball or, in the case of the infant Plaintiff and Gooch, possibly because they had been dared by one of the Connor boys to do so.
When they got through they found a number of children sliding down the embankment on tins and pieces of wood on a slide which started about three feet from the top of the embankment and ended somewhere about the fence at the bottom. They had no difficulty in getting through the fence, since it is in evidence that there was a gap high enough to allow a boy to pass through without stooping, though a man who afterwards rescued Terence found himself unable to reach or return from the spot without crawling.
Apparently after the children had got through the fence, if not before, one of the Connor boys dared Gooch and Terence to go across the lines before a train came past and look for the ball. The two Connors then, it seems, went to slide with the other children, whereas Terence and Gooch went on up the embankment, under a sort of low wire fence at the edge, passed about twelve feet across the top of the embankment and then reached and crossed both the up and down lines. The line was electrified so that in doing so they had to cross seven sets of metals, i.e., four rails constituting the running track and three live rails. When they got to the other side of the track they failed to find the ball and turned to run back at the moment at which the down train was just starting to leave Kidbrooke station. Bryan Gooch got over the rails safely but Terence slipped or tripped and fell on the up track, between the most southern of the lines (which was a live rail) and the running line which lies immediately next to and about a distance of one foot from it. In that position he lay in contact with the live rail unable to move, and shortly afterwards was run over by an up train before anyone could reach and rescue him.
After his arm had been severed he was rescued with considerable courage and skill by a Mr. O'Neill and handed over to an ambulance.
Before this day Terence had never been through the fence and apparently never knew of the gaps in it or of the tobogganing and never wanted to or did toboggan when he got there. There was no allurement in his case: he went on to the embankment to get his ball and over the rails because he was dared to do so. He had apparently been scolded for going through the fence by the Corporation's employee in charge of the recreation ground and warned by his father not to do so. He knew that the fence was there to keep him and the other children out, that it was wrong to go on the embankment, and that he had no right to do so. He further knew that if was dangerous to cross the lines but may not have appreciated the danger of the live rail.
For the Appellants it was urged that children, and in particular adventurous children, are not readily deterred by fences which it is easy to get through, that the evidence showed that a ganger and five men passed along the top of the embankment every week day and that on Saturdays the ganger passed along the bottom and saw and repaired the damage: that even if he did not see the children toboganning, which was unlikely, he must have seen the signs of the slide, as indeed he confessed he did after the accident, that the engine drivers, whether of motor or steam engines, must have seen the tobogganing as they passed, that the jury were entitled to disbelieve them when they said they did not, and that the failure to take steps more strenuous than...
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