1874 Radley v. London and North Western Railway Co. [Law Reports, 9 Exchequer, 71.] Feb. 7, 1874. 71] *RADLEY V. THE LONDON and North WESTERN RAILWAY COMPANY. Contributory Negligence-Railway Bridge. The plaintiffs, colliery owners, had a siding adjoining the defendants' line, which was crossed by a bridge, and on to which the defendants were in the habit of conveying the plaintiffs' trucks from their line, the plaintiffs removing them thence as they thought fit. The defendants brought on to the plaintiffs' siding and left there, after working hours, trucks of the plaintiffs, one of which was loaded with a broken truck to such a height that it would not pass under the bridge. More than twenty-four hours afterwards, but before work was resumed at plaintiffs' works, the defendants, after dark, pushed on to the siding other trucks of the plaintiffs, and pushed the loaded truck up to the bridge, by which means the train of trucks was arrested. The defendants' servants, not being aware of the cause of the obstruction, pushed the train of trucks forward with so much force that the loaded truck knocked down the bridge. In an action for the damage so done, the jury having found that the plaintiffs were guilty of contributory negligence in not removing the loaded truck: Held, that there was no evidence of contributory negligence to go to the jury. THIS was an action brought to recover damages from the defendants for injury done to a bridge upon the plaintiffs' siding, under circumstances which are fully stated in the judgment. The cause was tried before Brett, J., at the Liverpool Summer Assizes, 1873. The defendants contended that the evidence showed contributory negligence in the plaintiffs, and this question being left to the jury by the learned judge, they found for the defendants. A rule having been obtained for a new trial on the ground that the learned judge misdirected the jury in telling them that there was evidence of contributory negligence in the plaintiffs, Jan. 30. Aspinall, Q.C., and McConnell, showed cause. Herschell, Q.C., and Baylis, supported the rule, and referred to Davies v. Mann (') and Dimes v. Petley (1). The arguments are fully noticed in the judgment delivered. Cur, adv. vult. Feb. 7. The judgment of the court (Bramwell and Amphlett, BB.) was delivered by 72] *BRAMWELL, B.: This is a case of very great complexity, not so much in the facts as in the considerations to which they give rise. So much so that we have thought it desirable to put our opinion in writing. The material facts are as follows: The plaintiffs are colliery owners, who have sidings out of and on one of the defendants' lines; over these sidings is a bridge belonging to the plaintiffs, (2) 15 Q. B. 276; 19 L. J. (Q.B.), 449. (1) 10 M. & W., 546. Radley v. London and North Western Railway Co. 1874 with a headway of eight feet. It has been the course of business between the plaintiffs and the defendants for the defendants to take from these sidings the plaintiffs' wagons loaded with coals and deliver or leave them at their destination; also to collect the plaintiffs' wagons when empty, and bring them to the sidings, and there leave them. When the wagons were so left on the sidings, the plaintiffs dealt with them as they thought fit, i. e. took them to the pit to be loaded in such order and at such times as they pleased, or took them to their workshops if they needed repair. On a certain Saturday, after working hours, when the men were gone and the plaintiffs could only move them as they might on a Sunday, i. e. by some special engagement of workmen, the defendants brought and left on one of the plaintiffs' sidings some empty wagons of the plaintiffs, and a wagon, empty except that it had on it a wagon of the plaintiffs which had broken down and could not travel, and had to be brought in this way to the plaintiffs. The wagon so loaded was, with its load, eleven feet high, and therefore could not pass under the bridge. It remained where so left. On the next Sunday night, after dark, the defendants brought in a very long train of the plaintiffs' empty wagons, and pushed it on the siding where this wagon, loaded with the disabled wagon, was. The wagon was pushed as far as the bridge. Had it been empty it would have passed underneath, and probably the defendants had often pushed wagons in this way under the bridge, though there was evidence to show that they had been requested not to push things on the siding beyond a public highway, which was some distance before getting to the bridge in the direction in which the defendants brought the train of empty wagons. This is, perhaps, of no moment. But the wagons so loaded coming to the bridge and being unable to pass underneath it, the train stopped, and those who had charge of it, without looking to ascertain the cause of the stoppage, gave momentum to the engine to such an *extent that the wagon [73 with its load knocked the bridge down. For this the action was brought. It is needless to say there was evidence of negligence in the defendants, but the learned judge left it to the jury to say whether, and the jury did say that, there was contributory negligence in the plaintiffs, and found their verdict for the defendants on that ground. We have to say whether the learned judge was right in the way in which he dealt with this question of contributory negligence. The plaintiffs contended, first, that there was no evidence 1874 Radley v. London and North Western Railway Co. of contributory negligence. The way the defendants put it was as follows: They said the plaintiffs knew, or ought to have known, that the loaded wagon had been brought and left at the place where it was so left; they knew it would not pass under the bridge; they knew that the defendants would, or might, bring empty wagons on the Sunday, and, to make room for what they brought, would, or might push forward whatever they found on the siding, as they had done before; that therefore the plaintiffs ought to have moved the loaded wagon, or taken out the broken one, or warned the defendants it was there. The plaintiffs said, in answer to this, that assuming they knew the wagon was there with the load, so did the defendants; that the defendants knew also the height of the bridge, and that the wagon with its load would not pass under it; that the defendants knew that working hours were over when they brought it, and that practically the plaintiffs could not move or unload it till Monday; and they said they had a right to suppose that the defendants would not be so negligent, under these circumstances, as to drive this loaded wagon at the bridge, under which it could not pass, and which it would knock down if pushed against it with sufficient force, the more especially as there was another unoccupied siding on which the empty wagons brought on the Sunday might have been put; that in truth the alleged negligence in the plaintiffs was, not foreseeing and guarding against the negligence of the defendants; that even if they themselves had placed the loaded wagon there, they had no right to anticipate that the defendants would be so negligent as to put any wagon on the siding without seeing what was there, and to push with such force as they did when they found an obstruction. We think this reasoning correct, and, consequently, that 74] there was no evidence of contributory negligence for the jury. Suppose the defendants had brought the loaded wagon on Sunday night, and pushed as they did, then there would clearly have been no contributory negligence; but how does that differ from the present case, unless it is supposed there was some duty in the plaintiffs to move the loaded wagon on the Saturday, or to give some notice? The plaintiffs further contended, what perhaps is much the same thing differently put, that, according to Davies v. Mann (), assuming that there was negligence on their part, yet, if the defendants could have avoided doing the mischief by reasonable care, they were bound to do so; and the plaintiffs objected to the learned judge's summing-up, that () 10 M. & W., 546. Blanchet v. Powell's Llantivit Colleries Company. 1874 this had not been left to the jury. This also seems well founded. There must, therefore, be a new trial. Should the case be tried again, it might be as well to leave the question in this way to the jury, giving leave to the plaintiffs to move on the ground that there was no evidence of contributory negligence, should the jury find for the defendants. Rule absolute. Attorneys for plaintiffs: Sharpe, Parker & Pritchard, for Peace, Wigan. Attorney for defendants: Blenkinsop. [Law Reports, 9 Exchequer, 74.] BLANCHET V. POWELL'S LLANTIVIT COLLERIES COMPANY, LIMITED. Action for Freight-Difference between Weight of Cargo shipped and Weight expressed in Bill of Lading-Estoppel-Foreign Bill of Lading-Contract made in FranceBills of Lading Act (18 & 19 Vict. c. 111), s. 3. To an action for a lump sum for freight by the master of a ship against the indorsee of a bill of lading the defendants pleaded, except as to 217 tons of cargo, that by the bill of lading the plaintiff acknowledged himself to have received a number of tons exceeding 217 tons, and that he did not carry or deliver the goods in the bill of lading mentioned, but only a portion, to wit, 217 tons (not alleging in terms that he did not carry all the goods delivered). The plaintiff replied (3.) that he carried all the goods delivered to him under the bill of lading, and that the goods so delivered and described in the bill of lading as weighing more than *217 tons in fact [75 weighed 217 tons only, and that the weight mentioned in the bill of lading was a mere misdescription, inserted without fraud or default; (4.) that the bill of lading was made in France, and that, according to the law of France, the whole freight was payable, although part only of the goods was carried and delivered; and (5.) repeating the allegations of the third replication, and adding that the bill of lading was made in France, and that, according to the law of France, the whole freight was payable. On cross demurrers: Held, that the plea was ambiguous, but that, assuming it to be good, the third replication was a good answer to it, for that, in an action for freight, the master is at liberty (notwithstanding 18 & 19 Vict. c. 111, s. 3) to show that the cargo actually received by him differs in weight from that signed for in the bill of lading, at all events where the weight mentioned in the bill of lading is mere matter of measurement; and that the freight being a lump sum the plaintiff was entitled to recover the whole. Held, also, that the fourth and fifth replications were good. DECLARATION that one Paranque, at L'Orient, in the republic of France, delivered to the plaintiff a cargo of pitwood, to be carried by the plaintiff in a ship from L'Orient to Cardiff, under a bill of lading dated the 2d of January, 1874, signed for the same by the plaintiff, and there delivered (accidents and dangers of the sea excepted) to the 1874 Blanchet v. Powell's Llantivit Collieries Company. holder of the bill of lading or his order, he or his assigns paying the plaintiff for freight the sum of 3,441 shillings and £4 gratuity, amounting together to £176 18.; that at the date of the bill of lading Paranque indorsed it to the defendants, in order to pass the property to them, and thereupon the property passed to them, and all conditions, &c., were fulfilled necessary to entitle the plaintiff to claim the freight and gratuity from the defendants, yet they made default in paying the same. Plea, except as to so much as relates to the carrying and delivery of 217 tons of pit-wood, being parcel of the cargo on the declaration mentioned, that the bill of lading was in the words and figures following [here was set forth the bill of lading in the French language], which said bill of lading is properly translated thus: "I, Blanchet, master of the ship Christopher Columbus, being at L'Orient, in order to go to Cardiff, acknowledge to have received on board my ship, of you, Paranque, 256,782 kilos., the whole safe and in good condition, marked and numbered as in margin [256,782], which I bind myself to convey (perils excepted) to Cardiff, and deliver to the bearer or his order on his paying me 3,441 shillings and £4 gratuity, in faith of which, &c. Signed at L'Orient, the 2d of January, 1873. A. E. Blan76] chet;" and *that the plaintiff did not carry or deliver the goods in the bill of lading mentioned, but a portion of the same only, to wit, 217 tons. Replications. 3. That the plaintiff did carry and deliver to the defendants the whole of the goods delivered to him under the bill of lading, and which were intended to be thereby described; and that the goods so delivered and described as weighing 256,782 kilos., a weight exceeding 217 tons, in fact weighed 217 tons, and no more, and that the weight mentioned in the bill of lading was a mere misdescription, inserted without fraud or default on the plaintiff's part. 4. That the bill of lading was made at L'Orient, in the republic of France, and that, according to the law of France, the whole freight was payable, although part only of the goods was carried and delivered as in the first plea mentioned. 5. Repeating the allegations in the third replication, and adding that the bill of lading was made at L'Orient, in the republic of France, and that, according to the law of France, the whole of the freight was payable. Demurrers to the plea, and replications, and joinders in demurrer. |