McQueen v Great Western Railway Company

JurisdictionEngland & Wales
Judgment Date1865
Date1865
CourtDivisional Court
[DIVISIONAL COURT] M'QUEEN v. THE GREAT WESTERN RAILWAY COMPANY. 1875 June 1. COCKBURN, C.J., MELLOR and QUAIN, JJ.

Carrier of Goods - Felony of Servants - Evidence - Carriers Act, 11 Geo. 4 & 1 Wm. 4, c. 68, s. 8.

The plaintiff delivered to the defendants, a railway company, a case of drawings, of greater value than 10l., to be carried from C. to L. The defendants' servants at C. put it into a truck, which was shunted into a siding of easy access to the public. The case was stolen by some one at C. The plaintiff having sued to recover the value of the drawings, the defendants pleaded under the Carriers Act (11 Geo. 4 & 1 Wm. 4, c. 68), to which the plaintiff replied felony by the defendants' servants. At the trial the judge, on the authority of Vaughton v. London & North Western Ry. Co. (Law Rep. 9 Ex. 93), directed the jury that if the facts, in their opinion, were more consistent with the guilt of the defendants' servants than with that of any other person not in their employ, that was sufficient to call upon the defendants for an answer, which not having been given, the inference might well be that a felony had been committed by some of the defendants' servants:—

Held, a wrong direction: for that the greater probability that the goods were stolen by the defendants' servants merely arose from their having greater opportunity of committing the theft; and that this alone did not make out a primâ facie case that the felony had been committed by one of the defendants' servants.

DECLARATION for not carrying a parcel of drawings from Cardiff to London, and there delivering them.

Plea, that the goods were within the Carriers Act (11 Geo. 4 & 1 Wm. 4, c. 68), and were above the value of 10l., and were not declared or insured.

Replication, that the loss of the goods was occasioned by the felonious act of the defendants' servants.

Issue thereon.

At the trial, before Cockburn, C.J., at the sittings in Middlesex, after Michaelmas Term, 1874, it was proved that on the evening of the 29th of August, 1873, the plaintiff's agent delivered a case containing water-colour drawings to the defendants at Cardiff, to be forwarded from Cardiff to London. The case was addressed to be plaintiff, and marked, “Valuable pictures. With care.” It measured 48 inches by 30 inches, and weighed 1 cwt. 16 lbs. No declaration was made of the contents and value of the case, nor was it insured. The next day the defendants' servants put the case into a truck, into which a seaman's chest was also put, and the two were covered over with a tarpaulin. A number of empty boxes were put round them. About one o'clock the truck, being loaded, was placed on a siding, which was half a mile in length and formed part of the goods station, to await the departure of the 8.20 p.m. goods train for London, to which it would have to be attached.

The goods station at Cardiff extends about a mile in length, and was laid down with two sets of rails or sidings, over which were two level crossings, so that any person coming on to the level crossings could, if they pleased, get into any part of the goods station. On one side the fence was a low paling, over which persons. outside could easily climb, and so obtain access into the station; on the other side there were two gates, a cart-gate and a foot-gate. A number of persons came through the cart-gate with carts bringing and taking away goods to and from the station. After six o'clock the cart-gate was locked, but the foot-gate was open day and night. Persons other than the company's servants used the goods station as a thoroughfare, to get from one part of the town of Cardiff to another. On the arrival of the goods train at London the next morning the case was missing, and the seaman's chest had been broken open, and the cords with which it was fastened had been cut.

It was admitted, on behalf of the defendants, that the case must have been stolen by some one from the truck while standing in the goods station, but it was contended that there was no evidence of a felony having been committed by the defendants' servants. No witnesses were called on behalf of the defendants.

Cockburn, C.J., at the request of the plaintiff's counsel, on the authority of Vaughton v. London and North Western Ry. Co.F1, left the question to the jury whether the case had been stolen by any of the defendants' servants, directing them that, if the facts, in their opinion, were more consistent with the guilt of the defendants' servants than with that of any other person not in their employ, that was sufficient to call upon the defendants for an answer, which not having been given, the inference might well be that a felony had been committed by some of their servants.

The jury found a verdict for the plaintiff for 365l., leave being reserved to the defendants to move to enter a verdict for the defendants or a nonsuit.

A rule was afterwards obtained on the ground that there was no evidence to go to the jury of a felony having been committed by the defendants' servants.

Digby Seymour, Q.C., and Lumley Smith, shewed cause. If, on the state of facts proved at the trial, it was more probable that a felony had been committed by the company's servants than by any one else, the jury might come to the conclusion that the servants of the company had committed the felony: Vaughton v. London and North Western Ry. Co.F2 Here the company's servants had greater facility of access to the truck and to the station than the public had, and if they were found with the case in their possession it would excite no suspicion, but if one of the public were seen with it he would be questioned. One of the public could not carry away a package of the size of the case without attracting notice. The case was labelled “valuable pictures;” the...

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