Grand Trunk Railway Company of Canada v Barnett
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1911 |
| Date | 1911 |
| Year | 1911 |
| Court | Privy Council |
Action for Negligence resulting in a Collision - Plaintiff a Trespasser and not a Passenger - No Breach of Duty or Cause of Action.
In an action against the appellant railroad company for damages for personal injuries resulting from collision caused by the negligence of the appellants' servants it appeared that the collision took place on the property of the appellants to which the train carrying the plaintiff, which belonged to another company, had access by their leave and licence. It further appeared that the plaintiff was a trespasser on the appellants' property and also on the said train, which to his knowledge was not at the time in use as a passenger train and in which he had taken up a precarious position on the platform and step of a carriage in disobedience of a by-law of both companies:—
Held, that the appellants were not liable, for no breach of duty had been shewn.
APPEAL from a judgment of the Court of Appeal (October 13, 1910) affirming a judgment of a Divisional Court of the High Court of Justice (March 7, 1910).
The plaintiff respondent alleged that on August 23, 1909, in the night time, he was a passenger on a train owned and operated by the Pere Marquette Railway, and that when the said train was moving reversely in a south-easterly direction on the main track in the city of London it collided with the defendants' van or car owing to the negligence of the defendants and their servants, whereby the plaintiff lost both of his legs and sustained other injuries. The negligence imputed was in leaving the said van or car on a siding foul of the main line when the switch was set for the main line; and in not having lights on the van or car to warn the servants on the Pere Marquette Railway train that the van or car was foul of the main line.
Upon the findings of the jury that the plaintiff was not on the train by the permission of the Pere Marquette Railway Company, and was not upon the platform of their car at the time of the accident by their permission, that is, the permission of those who were in charge of that train, the trial judge gave judgment in favour of the appellant company and dismissed the action without costs.
The Divisional Court in appeal found that the plaintiff was on the platform of the Pere Marquette car with the knowledge of Cole, the brakesman, and that the appellants were therefore liable, and that even if the plaintiff was a trespasser on the Pere Marquette car the appellants would still be liable for the injuries sustained.
In the Court of Appeal Moss C.J. held that, no matter what the plaintiff's true position was as far as the Pere Marquette Railway Company was concerned, he was not at the time a trespasser upon the rights of the appellants, and that, the collision having happened through the negligent act of their servant, they were responsible for any injury resulting therefrom. “There was nothing to absolve the defendants from the duty of exercising due care to avoid collision with the Pere Marquette train.”
Garrow J. held that, as the Pere Marquette train was rightly on the appellants' tracks, the respondent was not a trespasser so far as the appellants were concerned.
Meredith J. held that the appellants owed no duty to the respondent, who had no right to be at the place where he was injured, and whose presence there was unknown to the appellants or to the employees of the Pere Marquette Railway Company.
D. L. McCarthy, K.C., and S. F. Spence, for the appellants, contended that the view taken by the trial judge and by Meredith J. in the Court of Appeal was right. The respondent was a trespasser. Even if he had a right to be on the train he had no right to stand on the platform of the car, much less on the steps of the platform, which position was the proximate cause of his injuries. There was no suggestion of any wilful act on the part of the appellants' servants having caused the collision; and the jury found that the men in charge of the Pere Marquette train did not know he was there, and if they had known would have put him off before the train started. The appellants owed him no duty except for a wilful or wrongful act, for he was as much a trespasser on their line as if he had been walking on the tracks. To stand where he did was to court disaster in case of a collision and was plainly contributory negligence. Sect. 282 of the Railway Act (R. S. C., 1906, c. 37) protected the appellants, who had posted up the notices required by that section at their stations forbidding persons to ride, as the respondent had done, on the platform or steps of trains. Reference was also made to s. 425 (c) of that Act, and to Watson v. Northern Ry. Co. of CanadaF1; Lowery v. WalkerF2, which was reversed on appealF3 on the ground that the plaintiff was where he was with the permission of the defendant, though without express leave; Degg v. Midland Ry. Co.F4
Foulds and P. H. Bartlett, for the respondent, contended that the accident was due to the gross negligence of the appellants, and that the Pere Marquette train was lawfully upon the track over which it was being operated. Further, the collision occurred upon a public highway in the city of London, and the appellants in the circumstances were wrongfully thereon. There was no evidence that the respondent was a trespasser on the appellants' property. He was on the property of the Pere Marquette Railway Company, whose train at the time of collision was rightfully where it was. The appellants had only a right of way over the highway and could not rely upon proprietary right which was by Ontario law vested in the Crown. They referred to Leame v. Bray.F5 With regard to s. 282 of the Railway Act and the notices relied upon by the appellants, the latter were improperly received in evidence notwithstanding the respondent's objection. The respondent claimed that he was on the Pere Marquette car with the...
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British Railways Board v Herrington
...broadly stated, it is a duty to treat the trespasser with ordinary humanity. Bird v. Holbrook (1828) 2 Bing. 628, 641; Grand Trunk Railway Company of Canada v. Barnett [1911] A.C.(J.C.) 361, 369; Latham v. Johnson [1913] 1 K.B. 398, 411. But that is a vague phrase. What is the content of t......
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Addie (Robert) and Sons (Collieries) Ltd v Dumbreck
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British Railways Board v Herrington
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