London Passenger Transport Board v Upson
|England & Wales
|Lord Porter,Lord Wright,Lord Uthwatt,Lord du Parcq,Lord Morton of Henryton
|09 December 1948
|Judgment citation (vLex)
| UKHL J1209-1
|09 December 1948
|House of Lords
 UKHL J1209-1
Lord du Parcq
Lord Morton of Henryton
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause London Passenger Transport Board against Upson and another, that the Committee had heard Counsel, as well on Thursday the 17th, as on Monday the 21st and Tuesday the 22d, days of June last, upon the Petition and Appeal of the London Passenger Transport Board, of 55 Broadway, London, S.W.1, 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 31st of July 1947, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order 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 Annie Upson (wife of Walter Victor Upson) and the said Walter Victor Upson, lodged in answer to the said Appeal (which said Appeal was, by an Order of this House of the 16th day of November last, amended by the substitution of the London Transport Executive as Appellants in the Appeal in the place and stead of the London Passenger Transport Board (pursuant to the provisions of the Transport Act, 1947)); 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 His Majesty the King assembled. That the said Order of His Majesty's Court of Appeal, of the 31st day of July 1947, 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: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, such Costs to be taxed as between Solicitor and Client, and the amount thereof to be certified by the Clerk of the Parliaments.
This appeal raises certain questions as to what constitutes negligence at Common Law in the case of the driver of an omnibus in approaching and passing over a pedestrian crossing and a further question as to the construction of and obligations imposed by the Road Traffic and Vehicles, Pedestrian Crossing Places Order, S.R.O. 1941 No. 397.
The case was tried by Humphreys, J. in the first instance who found the driver of the omnibus guilty of negligence at common law. In the Court of Appeal Cohen and Asquith, L.J J. reversed this finding but held the driver guilty of a breach of the Order. Lord Greene, M.R. dissented and attached neither blame nor liability to the driver or the respondent. The facts have been found by and are best taken from the judgment of Humphreys, J. They are as follows:—
"This action arises out of an accident which took place on the 23rd November, 1945, in Baker Street, that part of Baker Street where it is crossed by Blandford Street. That crossing is controlled from one side of Baker Street to the other by traffic lights. There is also a refuge in the road at the centre line and there is a pedestrian crossing. The plaintiff was minded to cross Baker Street from the north-eastern corner to the north-western corner and she proposed to cross by the refuge. She did that by walking on the pedestrian crossing and, as far as I can see, in the middle of the crossing. She had to walk a distance from the kerb to the nearest point of the refuge about 17 feet 9 inches. She safely negotiated something like 15 feet of that 17 feet 9 inches and then she was knocked down and injured by one of the defendants' omnibuses which was coming south down Baker Street, and she was knocked down by the offside front wing of that omnibus. I ought to say here that there was a taxi-cab—this is one of the agreed facts—drawn up actually with its wheel on the pedestrian crossing there was in fact blocking that pedestrian crossing, or part of it, a taxi-cab which was drawn up quite close to the kerb and the evidence was that the taxi driver was off his seat, having stopped there to pick up a fare. The effect of that, of course, was that as far as the plaintiff was concerned her view of the oncoming traffic, the traffic dangerous from her point of view, that is the southbound traffic in Baker Street, was masked by the width of the taxi-cab. I do not think it was given in evidence, but I suppose 5 feet is a reasonable amount to assume as the width of the taxi-cab. In the same way the view which the omnibus driver would have of her when she was on the pedestrian crossing would also be masked 5 feet."
The learned judge accepted the evidence of the driver that he was going 15 miles an hour and held that that was a perfectly reasonable pace, found that the lights were in his favour, that he first saw the respondent after she emerged from behind the taxi at about the middle of his part of the crossing and at about a distance of 9 feet, that he braked hard and eased off to the left a little but could not turn far because to have done so would have been to hit the refuge in the centre of the crossing and that he had his omnibus under perfect control.
The driver also said, and Humphreys, J. accepted his evidence, that the respondent did not look as if she saw him that, he doubted if an accident could have been avoided even if she had been looking, and in reply to a question put in cross examination that he knew people do cross against the lights, "they will do it and it is a thing you look out for". From the evidence of the conductor who appears to have seen the respondent hurrying across the pavement before she was hidden by the taxi-cab and of a lady passenger who spoke to seeing the respondent hesitating on the pavement and then plunging across the street, the learned judge concluded that the respondent's movements across the pavement before she reached the taxi-cab should have been observed by the driver.
I do not think it necessary to quote further the findings of the learned judge inasmuch as those already given are the salient facts in the case.
In these circumstances Humphreys, J. did not think it necessary to come to a definite conclusion as to the result of the Regulations but found both the lady and the driver guilty of negligence at common law. The lady because she failed to take the precaution of looking to see whether the lights were green or red and the driver because:
"he knew that, although the lights were in his favour, people might cross and he knew and recognised that a bus driver is not entitled to run people down on a pedestrian crossing on the ground that the pedestrian is so negligent that, therefore, he can run him down."
Therefore the bus driver ought to have been on the look out to see whether there was anybody approaching the taxi-cab who was apparently about to pass in front of it and might be expected to appear on the crossing just about the time the driver got there. The learned judge continues:
"He did not see her. Two witnesses for the defendants said they did see her, she was perfectly plain to be seen, hurrying towards the kerb obviously with the intention of crossing. I think the driver plainly exhibited that form of negligence, negative negligence, which consisted of not seeing that there was something which was going to result in danger to a pedestrian who was lawfully in the road on that crossing."
My Lords, I have quoted the learned judge's words somewhat fully because as it seems to me the facts as found by him and those upon which the case was argued before your Lordships were not quite the same. Before your Lordships the respondent's representatives, as I understood them, laid little emphasis on the suggestion that the lady should have been seen by the driver hurrying across the pavement before she reached the taxi-cab. What they did say was that the driver should have anticipated that some person who, owing to the presence of the taxi-cab could not be seen, might negligently try to pass over the crossing, and should have driven slowly enough to enable him to pull up before reaching the crossing in case such an eventuality occurred.
In the Court of Appeal, however, reliance appears to have been placed upon the facts as found by the learned judge and dealt with by the Master of the Rolls when he says:
"The fact that if the driver had looked in that direction he would have seen the plaintiff is no ground for saying that it was his duty to look in that direction. The fact that a driver could have seen something if he had looked is, of course, conclusive against him when he was under a duty to look; to say that he was under a duty to look because If he had looked he would have seen is, with respect, entirely to misunderstand the nature and foundation of the duty to keep a proper look-out."
My Lords, if the driver could and ought to have seen the plaintiff hurrying towards the crossing before she reached the taxi-cab and to have anticipated that she was about to or might hasten across the crossing and did not do so, undoubtedly he would be guilty of negligence at Common Law. With all respect to the learned judge, however, I cannot think that the evidence justified such a finding. It is true that the conductor with a free mind and an eye unconcentrated on the highway did see her at that moment, but the other independent witness spoke rather to her hovering on the kerb, undecided whether to cross or not. In any case there is no evidence as to the number of pedestrians on the side-walk and both conductor and witness were at least 14 feet behind the driver and may well have seen what was invisible to him owing to the obstruction of the taxi-cab.
I think the driver must...
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