Francis H. (Francis Hermann) Bohlen.

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the practice at the defendant's cohiery to do trifling repairs to
waggons rather than incur the delay caused by sending them to be
repaired by the waggon company. It was proved that it was the
duty of an inspector of waggons employed by the Midland Railway
Company to inspect waggons at Bagworth and also at Leicester.
A servant in the employ of the defendant stated that he had examined
the truck in pursuance of his duty before it was passed on to Bag-
worth sidings, and did not observe any defect in it.

In answer to questions left to them by the learned judge, the
jury found that there had been no contributory negligence on the
part of the plaintiff, and that the accident had occurred through the
negligence of the defendant, and gave a verdict for the plaintiff for
200/. damages. The learned judge declined to give judgment, leaving
either party to move for judgment. The plaintiff now moved for
judgment, and the defendant applied, by way of cross-motion, for
a new trial on the ground that upon the facts there was no duty
shewn on the part of the defendant towards the plaintiff' to use care
with regard to the condition of the truck.

Grove, J. This appears to me a much stronger case in favour
of the plaintiff than the case of Heaven v. Pender, 11 O. B. D. 503.
In that case the real question seems to have been whether the owner
of the dock was liable, or whether the plaintiff"s proper remedy was
against the shipowner with whom the plaintiff's employer had con-
tracted to paint the ship. The decision in the Court below seems
really to have been that the plaintiff had sued the wrong person. In
my opinion the plaintiff in the present case is entitled to recover
quite independently of the decision of the Court of Appeal in
Heaven v. Pender (supra). The defendant hired the truck, it is
true, from the Midland Waggon Company. The question, however,
is not as to the existence or non-existence of any liability on the
part of that company, but whether the defendant, who had the
entire dominion over the truck, is liable to the plaintiff in respect
of its defective condition. It was clearly part of the contract for the
sale of the coal to the plaintift"s employers that it should be conveyed
in a truck to the buyers, and it must necessarily have been con-
templated that, when it arrived at its destination, the truck would be
unloaded by the buyers' servants. I think it is plain that under
these circumstances' a duty arose on the part of the defendant
towards the plaintiff. If vendors of goods forward them to the
purchasers, and for that purpose supply a truck or other means of
conveyance for the carriage of the goods, and the goods are
necessarily to be unloaded from such means of conveyance by the
purchaser's servants, it seems to me perfectly clear that there is a duty
on the part of the vendors towards those persons who necessarily
Avill have to unload or otherwise deal with the goods to see that
the truck or other means of conveyance is in good condition and
repair so as not to be dangerous to such persons. I do not say that
the vendors would be responsible for latent defects, or matters that
they could not reasonable foresee, but they are, in my opinion,
bound to see that the machinery of the truck is apparently in good


order. It is contended that there is no duty because there was no
contract with the plaintili, but the phiintiff was acting as the servant
of the company with whom the contract was made, and the defendant
must have known that the buyers would not unload the coal them-
selves and that their servants w'ould do so. Under these circum-
stances it seems to me clear that there was a duty not to be guilty
of negligence with regard to the btate and condition of the truck.
It is urged that the truck stood for six weeks at the station of the
^Midland Railway Company, and that the inspector of that company
ought to have examined it there, but we are not in(juiring now
whether there was any negligence or liability on the part of the
-Midland Railway Company, but whether the defendant is liable for
having sent out a defective truck, and 1 am clearly of opinion that
he is,

A. L. Smith, J. I am of the same opinion, and I have not much
to add. The case seems to me, I must say, a very clear one. The
plaintiff sues the defendant for breach of duty in negligently allowing
truck which the plaintitT had to unload to be in a defective con-
dition. It was said that the defendant was not the owner of the
truck, but the evidence was that it was and had for some time been
in his possession, and that it was the duty of the defendant's servants
to examine it, and that they did examine it before it went out from
the colliery. It is true that the waggon owners repaired the trucks
which they let out, but I do not think that that fact, or the fact that
the waggon was delayed for six weeks at Bagworth station makes
any difference. There was evidence that the truck was insecure
when it left the defendant's colliery, and that, if due care had been
taken, the defendant's servants would have found out the cause of
the insecurity, viz., that the catch on the pin was worn out, and
probably had been so for some time. There was also evidence for
the jury that the accident did not occur by reason of any con-
tributory negligence of the plaintiff. It was argued, however, that,
though the defendant was guilty of negligence, the plaintiff cannot
succeed because there was no duty owed by the defendant to the
plaintiff to take care with regard to the condition of the truck. But
it ap])cars to me that there was such duty. Look first at the posi-
tion of the plaintiff. He is not merely one of the general public, or
a bare licensee, or stranger. He is not a person who had no business
in the truck. It was his duty to unload the truck. Then what is
the position of the defendant? The defendant had entered into a
contract for the supply of coal to the plaintiff's employers, and
sent the truck loaded with coal for the purpose of being unloaded by
the buyer or his servants. Those being the respective positions of
the plaintiff and defendant, I cannot see how it can be said that
there was no duty owing from the defendant to the plaintiff to see
that the truck, which the plaintiff was to unload, was in a safe
state. It seems to me to make no difference that the truck was six
weeks upon the journey. The duty existed when the truck started
from the colliery, and the truck was unsound then. If it could have
been made out that something had happened in the six weeks which
rendered the truck unsound, the case would have been dift'erent.
But I cannot see how it can be said that, because the truck was six


weeks on the road, the duty which otherwise would have existed
was got rid of. Again, it was argued for the defendant that a
duty such as this has never been held to exist except as against a
person occupying or in possession of premises or property. I do
not think that this is so. It seems to me that the case of Foulkes v.
Metropolitan District Ry. Co., 4 C. P. D. 267; 5 C. P. D. 157, was
very similar to the present case. There the plaintiff sued a railway
company from whom he had not taken his ticket, and it was urged
that he could not sue the defendants, because they had not con-
tracted with him. But the Court held that there was a duty towards
the plaintiff on the part of the defendants, because they had allowed
him to come into their carriage. The principle on which that case
was decided seems to me to apply to the present case. If the judg-
ment of Thesiger, L.J., in the Court of Appeal is considered, it will
I think be found that it is not essential to the existence of the duty
that the defendant should be in the occupation or possession of the
property through the defect in which the injury arises.

For these reasons I think it clear that there was in this case a
duty on the part of the defendant towards the plaintiff.

Judgment for plaintiff, and application for new trial refused.''-


In the House of Lords, 1897. L. R. 1898, App. Cas. 216.

Lord Herschell. My Lords, the question which arises upon
this appeal is whether upon this record there is a case established as
against the Caledonian Railway Company. The action was brought in
respect of an accident that happened to a servant of the Glasgow
and South Western Company by which he lost his life, the action
being brought by his widow to recover damages in respect of the loss
she had thereby sustained. Not only are the Caledonian Railway

^Accord: Hayes v. P. & R. Co., 150 JMass. 457 (1890), plaintiff, as-
sisting a customer to unload defendant's coal barge, injured by defective
appliances supplied with it for use in unloading; SwecJicy v. Rozell, 31
N. Y. Misc. 640 (igoo), defective tackle supplied with truck of baled hay;
Rick V. New York C. & St. L. R. Co., 232 Pa. 553 (1911), railroad company
liable to the servant of a consignee for injury received while unloading a de-
fective and ill inspected car, though the car was not owned by it and had
been last hauled by a connecting line, which in pursuance of a traffic arrange-
ment did the switching into the consignee's yards ; but see McCallion v. Mis-
souri Pac. R. Co., 74 Kans. 785 (1906), defective car furnished to a quarry
for loading — the defect being known to the quarry owner — it was held that
the railroad was not liable to a servant of such owner injured while loading
the car; Roddy v. R. R., 104 Mo. 234 (1891), a railroad furnishing cars to a
quarry owner to be loaded by his servants for carriage over its line is held
bound to take care that they are in fit order for safe loading. "What Vvas to
be done by the respective parties was for their mutual profit;" Stavdard Oil
Co. V. Wakefield's Adm., 102 Va. 824 (1904), a company shipping explo-
sives in its own cars must take care that they are safe for normal trans-
portation and unloading, though it is not liable if a fire or explosion results
from some abnormal and unusual method adopted in transporting or un-
loading them; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400 (C. C. A.
7th Cir. 1894) ; Bright v. Barnett & Record Co., ^^ Wis. 299 (1894), scafTold
builder putting up defective scafYold liable to workmen injured by its fall;
Fish v. Kirlin-Gray Co., 18 S. Dak. 122 (1904), an electric light company is
answerable for the condition of an arc light sold by it to a church and
placed by it therein, which it uses for suppling electric light under a con-
tract and which it has bound itself to keep in repair and is liable if it
falls and injures one of the congregation; Mays^'ille St. R. R. Co. v. Thomas,
22 Ky. L. R. 1645 (1901), a gas company supplying a street railway com-
pany with electricity is liable for the bad condition of the wires through
which it is supplied, though owned by the latter company.


Company sued, but the Glasgow and South Western Railway Com-
pany also; and as against the Glasgow and South Western Com-
pany it is not contested that a relevant case is shown upon the


Now, my Lords, the facts that appear upon this record are
these. The Caledonian Railway Company carried certain coals to
the Dumfries Station and as soon as those coals arrived in the wagons
at the Dumfries Station every obligation undertaken by the Cale-
donian Company in respect of them was at an end. That was the
place of delivery, and the parties might, if they had pleased, have
taken delivery of them there; they might have emptied the wagons
of their coals at the place where the Caledonian engine left them ;
and the Caledonian Company, of course, would have had nothing
to say to their doing so. But for their own purposes and their own
convenience the Glasgow and South Western Company rnade an
arrangement with the Dumfries Gas Commissioners by which they
were to haul the coals from the place of delivery under the contract
with the Caledonian Company, namely, the station, to the premises
of the Gas Commissioners, which were about 400 yards, or some-
thing like a quarter of a mile, distant. Between the place where the
Caledonian Company left these trucks of coals and the premises of
the Gas Commissioners there was a tramway passing along the
public streets. The trucks were hauled two at a time along this
tramway to the Gas Commissioners' premises. Whilst two trucks
were being so hauled, it is alleged that the husband of the plaintiff
lost his life by reason of some imperfection in the breaks connected
with those trucks. It became necessary in passing along this tram-
way to check the motion of the trucks, and the motion of these trucks
was not checked rapidly enough to prevent the one coming against
the other so that the plaintiff's husband was crushed.

I think I have stated all the facts which appear upon the record,
except that perhaps I ought to add that it is averred that it is by the
permission, sanction, and consent of the Caledonian Company that
the Glasgow and South Western Company, or the Gas Commission-
ers, do not take delivery of the coals out of the wagons at the station,
but haul those wagons on so that the coals may be discharged direct
into the premises of the Gas Commissioners.

:\Iy Lords, the question is whether these facts establish any
duty on the part of the Caledonian Company, a breach of which has
led to the damage complained of by the plaintiff'. It is said that the
duty is this — that the Caledonian Railway Company, inasmuch as
they knew how the Glasgow and South Western Company were
going to use these wagons, were bound when they handed them over
to examine them in order to see that they were in a proper con-
dition, and if they had examined them they would have seen that
they were not in a proper condition ; they were, therefore, handing
over wagons which they had not so examined, and which were not
in a proper condition for use by the Glasgow and South \\^estern
Companv : and that was a dutv which entitled any person in the em-
plovmcnt of the Glasgow and South Western Company, who might
be injured whilst they were being used by the Glasgow and South


Western Company, to sue the Caledonian Railway if there was a
breach of it.

My Lords, I do not think any such duty has been established
by the arguments of either of the learned counsel for the respondent.
The Caledonian Company had performed all their obligations when
they handed these wagons over; and I think it would be altogether
unreasonable to maintain that there was a duty on the part of the
Caledonian Company, after they had fulfilled their contract of car-
riase. to examine these wagons and see that the breaks connected
with them were in a fit condition for a subsequent journey on which
for their purposes the Glasgow and South Western Company were
going to haul them into the premises of the Gas Commissioners. With
that haulage the Caledonian Railway Company had nothing to do —
their contract was at an end ; it was a new journey along an entirely
different railway, and with the incidents of that journey the Cale-
donian Railway Company were altogether unconnected.

Can it be said that, because they handed these wagons over
under the circumstances I have mentioned to the Glasgow and South
Western Railway Company, they became liable to any workman of
the Glasgow and South Western Railway Company who might be
injured whilst the Glasgow and South Western Railway Company
were using them on what, for this purpose, I may call their line and
their purposes, because they were not when they were handed over
to the Glasgow and South Western Railway Company in a condition
suitable for use on that journey? My Lords, it seems to me im-
possible to maintain that there was any such duty owed by the Cale-
donian Company, to persons in the employment of the Glasgow and
South Western Company. I think, if we were to hold that such an
obligation existed, some very strange consequences would ensue —
consequences so unreasonable, it seems to me, as to show that the
duty cannot exist.

Reliance was placed upon certain authorities to which your
Lordships' attention was called, and particularly upon the case of
Heaven v. Pender (ii Q. B. D. 503). That case really seems to me
totally different. There some apparatus of a dock company was
being used for what I may call dock purposes. It was part of the
facilities which the dock afforded, just as they did their cranes, their
warehouses, or any other appliances, to the vessels that came to use
their docks. This particular appliance was in such a condition that
a person going upon it, trusting, as he would have a right to trust,
that he might go upon it safely because it would bear his weight, was
led into what has been called a trap by which he sustained an injury.
He was there upon the invitation of the dock company ; and, although
it is true that this staging was used for painting a ship, it was part of
the appliances supplied by the dock company for purposes connected
with the carrying on of their business. It was one of the facilities
given by which they induced vessels to use their docks that they did
supply these appliances. It was said that they had invited the plain-
tiff to come upon that staging, and that they were responsible if
the man so invited was led into the trap by means of which he was
injured. That was the case of Heaven v. Pender, supra.

Now, my Lords, I am quite unable to see that that case has any

cali:donia.\ ry. go. t'. mlliiolland 487

application to the present case at all. This wagon, at the time it was
being used, was being used on a new journey initiated by the Glas-
gow and South Western Company for their jjurposes, and there was
nothing in it wh'ich can be said to be comparable to a trap created by
or permitted to exist by the Caledonian Company into which they in-
vited and led the deceased man to come. Therefore the case of
heavoi V. Pender, supra, seems to me entirely without application
to the present case; and, as I have said. I am cjuite unable to see any
duty resting uj)on the Caledonian Company to the deceased man, a
breach of which has caused the loss of his life, and consequently a
right of action in the plaintiff.

My Lords, in the Court of Sessions there was a difference of
opinion between the learned judges. The majority were of opinion
that this statement, these condescendences, did shew that there was
a case, and judgment was given accordingly by Lord Young, in which
the Lord Justice Clerk concurred. Now. with all respect, I think
the judgment of Lord Young is founded upon the supposition that
it was enough if there might have been a contract under which the
Caledonian Company were under some obligation during the haulage
of these wagons, and that, there being an uncertainty whether
there was such a contract or not, the case ought to go to trial to see
whether there was such a contract, because he says it is absurd to
suppose that they were led by favour and affection to let their wagons
be used, and therefore they must have been used under some contract.
That, I think, is what was in the learned judge's mind — it is only in
that sense that T can interpret his language and appreciate the view
he has taken. Hut I think it is for the plaintiff' to make out a relevant
case. If it rests upon a contract, though we may not know what has
passed between the parties, and it may be a matter of speculation,
still if a contract is necessary to a relevant case, then a contract must
be alleged ; and of course it may be that the plaintiff" will not succeed
in proving it. But in the present case I can find nothing alleged in
the whole of this claim to shew that any responsibility rested upon
the Caledonian Railway Company after they had delivered the goods
at the station, or that they had anything to do, or any sort of con-
nection, with the haulage which took place afterwards from the sta-
tion to the works of the Gas Commissioners.

My Lords, for these reasons I think the judgment must be re-
versed. I may add that my noble and learned friend the Lord Chan-
cellor (Lord Halsbury), who heard the whole of the argument of
the leading counsel for the respondent, desires me to say that he
takes entirely the same view.

I move your Lordships that the interlocutor appealed from be
reversed, and the action as against the appellants dismissed.

Lord Siiaxd. My I^ords, it appears from the pursuer's state-
ment that the only part which the Caledonian Company took in refer-
ence to the use of these wagons was this : they, under a contract of
carriage which they had entered into, carried the coal in their wagons
from its place of departure (I do not know that it is very distinctly
stated where that was) to its place of destination, and that place of
destination was Dumfries. The moment the wagons arrived, hauled
by the Caledonian Company, under that contract of carriage, at the


Station at Dumfries, and were placed in the station of the Glasgow
and South Western Company there, the Caledonian Company had
done with their contract. It appears, however, that a separate ar-
rangement was made for a subsequent journey. I call it a journey,
although it was short in distance; it might have been for twenty or
thirty miles, but it so happens that it was not so long, but was only a
distance of 400 yards through the streets of Dumfries to the works
of the Dumfries Gas Commissioners. But for this separate journey,
as I call it, there was a separate undertaking between two different
parties : I mean between the Dumfries Gas Commissioners, to whom
the coals belonged and to whose premises they were carried, and the
Glasgow and South Western Company. It was in the execution of
that contract of carriage between the Gas Commissioners and the
Glasgow and South Western Company that this unfortunate man,
an employee of the Glasgow and South Western Company, met with
the accident which led to the action. The only connection, as it
appears to me, which the Caledonian Company had with this matter,
after delivering the wagons at the station, was that they were the
owners of the wagons. Beyond that I can see nothing which can be
suggested to fix responsibility upon them.^

SECTION 3. By Lease and for Hire.


Supreme Court of New York, 1896. 40 A"". Y. Supp., 659.

Daly, P. J. The plaintiff was injured by the overturning of a
coach belonging to defendant, and driven by his employes, and hired
by him to a social club for a day's excursion. The plaintiff', a minor,
was invited by a member of the club to ride in the coach on the
return journey. The questions to be determined by the justice on
the evidence were whether the overturning of the coach was caused
by its condition when it left the defendant's stable, or by overloading,
and the disorderly conduct of the passengers. The finding of the
justice was in favor of the plaintiff, on conflicting testimony as to
the facts, and is sustained by competent proof. It was proved by
two witnesses (Keane and Petty) that one or both hind wheels of
the coach dragged before the coach started on the excursion in the
morning, and that this was due to want of greasing of the axles.
This testimony, if believed, afforded reasonable ground for inferring
that ordinary care had not been exercised in preparing the vehicle

^Accord: Kemp and Dongall v. Darngavil Coal Co., L. R. 1909 S. C.
1314, coal company contracting to deliver coal alongside ship, held not liable
to servant of the stevedore who for his own convenience ran defective cars
up a steep grade to the tilting cranes. Where a freight car is in use for the
transportation of through freight under a contract which requires it to be car-
ried by several connecting lines, the decisions differ as to whether a carrier
turning over such freight to a connecting carrier owes to the servants of the
latter a duty to inspect the car containing it and in which it is to be for-
warded. See Union Stockyards Co. v. C. B. & O. R. R., 196 U. S. 217 (1904),
Moon V. R. R.. 46 Minn. 106 (1891). and Fa. R. R. v. Snvder. 55 Ohio St. 342
(1896), hold that the duty exists, while Glynn v. R. R.. 175 Mass. 510 (1900),
and Mo., Kan. &■ T. R. R. v. Merrill, 65 Kan. 436 (1902), reversing its former
decision in the same case, 61 Kan. 671 (1900), deny its existence.


for the work before it left the defendant's stable' * * * These
witnesses, who were experts, testified that the dragging of one wheel

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 69 of 124)