COURT OF APPEAL.

New Zealand Times, Volume XXXI, Issue 4904, 9 December 1876, Page 2 (Supplement)

COURT OF APPEAL.

Friday, December m'bride v. brogdens. His Honor the Chief Justice delivered the judgment in this case, which is as follows : In this action, which is to recover damages for a bodily injury sustained by the plaintiff through the alleged negligence of the defendants or their servants, at the trial of the issues the jury assessed the damages at £4OO. Leave was reserved to tho defendants to move to enter a nonsuit, or a verdict for I hem. Ihe defendants moved according to the leave reserved, and also to enter the verdict for them on the findings to the issues. They obtained a rule »», ouently an order was mado under tho 18th section of the Court of Appeal Act for the removal of the proceedings into this Court. Upon showing cause against the rule, it was argued on behalf of the plaintiff, as a preliminary objection, that the rule nisi had been obtained too late, inasmuch as it appeared upon affidavits that the trial was concluded on tho 22nd of July but that the rule was not moved for till the 9lh of August, a period of more than 14 days having therefore elapsed between the conclusion of the trial and the motion for tho rule. The plaintiff relied upon rule 2 of the general rules of 1873 That general rule deals with two classes of rules—those moved by virtue of a leave reserved at the trial, and those moved without such leave haying been reserved, The rule nisi was in part by virtue of leave reserved, in part without such leave. Where leave is reserved, the general rule provides that a time shall be fixed by the Judge, who reserves the leave at or within which time the motion is to De made. It does not appear that this was done. It was assumed at the argument of tho rule here that it wa3 not done ; if so, no doubt, it was from inadvertence: and for that omission it may bo said that the plaintiff is as responsible as the defendants, and cannot rely on the omission as nullifying the leave : the effect of snch an omission would bo to leave the time to be fixed by the Judge afterwards; but if so, then the hearing of the application for, and the granting of, the rule nisi, was also in effect an appointment of the time. The plaintiff assumes that the effect of such an omission was to leave tho time for making the-appli-cation subject to the general rule applicable to motions Assuming, however, that the Judge who presided at the trial did not fix the time it the trial or subsequently, and that the defendant was bound to move as if leave had not been reserved, atlU the Court on the application for the rule nisi had a discretion to grant the rule nisi after tho time limited by the general rule, and it will bo assumed now that, when granting the rule, the Court was satisfied that there was sufficient reason for the exercise of its discretion though the rule was applied for after the prescribed time-and this Court here would not discharge the rule on such a ground. It does not appear from the case whether the question of delay was raised at the granting-of the rule nisi or not. However, if, as was assumed at the argument, the time prescribed for motions without leave was the time within which the rule should have been moved, then the question remains, did not the defendant move within the time? For the rule prescribes as to the Court in b*nco that such motions must be made at the next practicable sitting in banco, not being earlier than three days after tho conclusion of the sitting. Now though a power is, given to move in Chambers for such a rule, if there is no sitting in banco within fourteen days from the trial, it does not seem to be obligatory, but permissive only on the party applying and perhaps as conferring a jurisdiction on the Judge in Chambers. A time is fixed within which such motions in Chambers may generally be made in Chambers, namely, fourteen days from the trial, that being tho time upon the expiration of which judgment may be signed and execution may issue The object no doubt wa3, that if no sitting in banco could be held within the fourteen days from the trial, either by reason of the amount of the business to be disposed of at the Circuit Court, or sittings, or otherwise—then, in order that the signing judgment and execut ! on should not proceed, applications might be made in Chambers for tho rule nisi, and thus the proceedings be stayed. If there bo no sitting in banco within the fourteen days, it may happen that judgment may bo signed and execution issue before the application in banco for the rule nisi can be made; but though such judgment may have been signed or even execution issued it does not appear that the Court in banco may not nevertheless grant the rule nisi. No doubt somo inconvenience may arise, and expense be caused, by the delay should there be no sitting in banco within tho fourteen days, and should judgment have been rfgn, d or execution issued. But the Court might impose on the applicant the payment of the costs incurred by tho other side of signing judgment or issuing execution as a condition of granting the rule nisi or absolute, a* a penalty for not applying in Chambers. In the present case it does not appear that the. judgment had been signed, or that it is a caso for the imposition In England where tho goneral rule is procise, and tho practice is tb require it to be adhered to strictly, still the Courts there would not on this ground discharge o rule which had been granted, but make it absolute, and if tho cose should require it on terms rSeo Ellaby v. Moore, L.J., N.S. 22, C.P. p 253) Though perhaps the rulo nisi would not have been wanted unless very special reasons were made out for allowing an infraction of the rule. On the whole I think that the application was in time; that even if the defendant obtained his rulo ntst beyond the prescribed time, still as judgment does not appear to tave been signed, the rulo should not be discharged on the ground of lapse of time, and that it is no caso to en'cr a nonsuit, or verdict for defendant was on two grounds. Ist. No evidence of negligence of defendants (which means of defendants or their servants), and even if there be evidence of negligence of defendants' servants, then that It appears that the plaintiff was a fellow servant of the persons whose negligence occasioned tho injury to the plaintiff. In shewing cause against the rule to enter a nonsuit it was contended on behalf of the plaintiff that in a case such as the Present, where several issues have been framed from tho declaration for submission to tho Jury for their verdict thereon, there can be no nonsuit; but that the answers of the Jury must be takon thereto. The argument was-that, as the plaintiff had prepared himself to prove tho several issues prepared for the jury, there should bo no judgment of nonsuit, but the findings of the jury on each such Issuo, 30 prepared, 8 The question is-whother tho plaintiff has in every caso a right to have all the issues tried out, though they are raised by pleas denying the allegations in tho declaration. But leave having been reserved to enter a nonsuit or verdict for the defendant, the Court may direct such one of these two courses to be taken as seems best to answer tho justice of the case; and.if Jn this case tho chargo of negllgenco is not provod thero is no reason why a nonsuit should not be entered. Somo questions wero raised os to the pleadings. The plaintiff contended that the dofonce of common employment was not open on the pleadings, as the plea was only the geaeral denial. . Tho declaration contained two counts: ono alleging that the plaintiff was in tho employment of the defendants, and that the injury was occasioned while In tho courso of such employment by the negligonco of the'defendants and of their servants. Tho other count did not allege that the. plaintiff was in tho defendants' employment; it alleged that while the plaintiff was travelling, with permission of tho defendants, on their railway in ono of thoir trucks, the truck was, by tho negligence of the defendants and their servants, upset, and the plaintiff injured.

To this declaration the defendant pleads one plea only-the general' denial. From jU Pj£s»£ several issues wore framed. None of t^^f,, 1 " express terms raised the q^ 5 H 0n ; T . h °„ t^,?,wa S the alleged negligence of the defendants servants tim the negligence of fellow-servants of the plaintiff, in the course of common employment. .. It was contended by the defonlantvttat as_thls appeared on the evidence adduced by the, ptantafl, he should be nonsuited : or, that as no other "eKllgenco was proved, a verdict should be: enteredl foe.the defendant on that ground. But on the part of the plaintiff It was contended that such a defence must bo specially necessary allegations,in a count for•negligence are flrst-tho allegations either of facts showing f duty to be careful, or a contract to be careful, and then a breach of such duty or contract. The duty may flow from a contract or may arise f torn the position of the parties, or other facts or circumstances; but the contract, or facts, or circumstances founding the duty must be aUeged in the declaration (see Dutton v. Powles, -30 L. J. Q. 8., p. 189. 31 L. J., Q. 8.191> " Negligence creates no cause of action unless it expresses a breach of duty," see judgment of Erie, U J., in the report last citod, and where, with referenced the declaration then before the Court, he Bays a sufficient cause of action must be averred. In thlß declaration the circumstances of the case are stated in detail, and we are all agreed that no contract is shewn, In the declaration, which has been broken by tho defendant There are no circumstances shewn to which a known duty is attached by law," see also Boorman v. Brown, 3 Q. 8., Oil. Brown v. Mallett, 5 0. 8., 615. Seymour v. Maddox, IB Q. 8., 331. Generally, a plea of general denial does, in New Zealand, put in Issuo all the material allegations In the declaration. It follows therefore that, if there is no special rule of pleading, limiting tho effect of a plea of general denial in an action for negligence, in such an action, the plea of general denial puts in issue tho facts and circumstances, or contract as the case may be, founding tho duty, as well as the allegations of tho injury having been caused by the defendant s negligent act—that is, it puts in issue not only that the act was the act of the defendant and that it was negligent, and that the injury was caused by the act, but also tho facts relied on as founding the duty. By modern rules of pleading in England the general issue in actions for negligence does not put in issue the facts and circumstances or contract founding the duty. These allegations are there not in Issue unless specially denied, but the other allegations are thereby put in issue, but there is no such rule in New Now, applying these principles to the present case, as to both the counts, the question whether the act was the act of the defendants or an act for which they are responsible is put in issue by tho general denial,, and if the negligent act is the act of a fellow-servant, not negligently appointed, then the act i 3 not the act of the defendants, but of the fellow-servant, for in suoh a case the rule of respondeat superior does not apply, see Tarrant v. Webb. 25 D.J. N.S. C.P p. 261; see per Cresswell, J., p. 202 ; see also per Blackburn, J., in Howells v. Tho Landore Siemens Steel Company, 44 L'.J. Q. 8., p. 25. where he says:—"ln this case it is essential for the plaintiffs to make out. first that the manager was the servant of the defendants, and then to show that ho was not a fellow-servant with the deceased, so ft 3 to exempt tho defendants from liability. So also in an action for negligence where the act has been done by the servant of the defendant to a stranger, the question whether it is tho defendant s act that is whether done in the course of tho service of the defendant, is raised by a denial that the act is the act of the defendant. . Some instances no doubt may bo found in the English reported cases where the question has been raised as a defence by a special plea, but numerous instances may bo found where the question is dealt with as raised by the ploa of not guilty, and as a nonsuit point. In Tarrant v. Webb, supra, there was no special plea. In Waller v. the South-Eastern Kailway Company, 32 L.J. Exch. p. 205, there was a ploa of not guilty only. In Priestley v. Fowler (3, Meo and W. p. 5) thore was a plea of not guilty, but as tho fact that the act was the act of the fellow servant engaged in a common employment, appeared sufficiently on the declaration, judgment was arrested. In Wigmore v. Jay, 10 L.J. Exch. p. 301, the plea was not guilty, and the verdict having been directed at the trial for defendant was upheld. In the same volume Exch. p. 296, is tho case of Hutchison v. the York Newcastle, and Berwick Railway Company. In that the question was raised on the record by a special plea, and it was objected on special demurrer that it amounted to the general issue, that it was bad on special demurrer as an argumentative travorso. It was held, however, 'unobjectionable on the ground taken ; but it was not held to be a plea in confession and avoidance. , . , In Wiggott v. Fox, 11 Exch. 535, there was a special plea raising this defence with cither pleas, amongst others no doubt the general issue; but at tho argument in banco a nonsuit was ordered to be entered, which shows that the special plea was either negative of some allegations in the declaration, or that tho question was raised by tho plea of not guilty or some other plea putting the plaintiff to the proof of his cause of action. .-,..., , ~ , I think it quito clear that the whole question Is xaifed by the denial of the allegations that the defendants have been guilty of negligence, and that this meets tho objection not only with reference to the first count, but also to tho second, in which there is no allegation of tho plaintiff being in the defendants service. . ~ , . ~ There remain the questions which arise upon the evidence. . *,_*«.■ These may be summarised as, that there was no evidence that the injury was caused by negligence of the defendants or their servants—that there was none of personal negligence.of tho defendants—and that if there was' evidence of negligence of their servants, It appeared that such negligence was of Broad or Gwynneth, and that both were proved to be fellowservants of the plaintiff. The accident waß attributable to three causes : Ist. The rapid speed, .and perhaps want of look-out. 2nd. The obstructions on the line, not proved to be pliced there by the defendants, but assumed to have been caused by cattle traffic at a crossing. 3rd. The driving of the truck, in which the plaintiff was in front of the engine. As to the Ist, tho "evidence establishes that tho plaintiff was in the service of the defendants, either actually, as he himself asserts in his evidence, or constructively (according to Wiggett and Fox), as in the employment of a sub-contractor engaged in a work under the control of the defendants and their servants. ~.,'*.' • ■., Also that tho plaintiff, though at tho time of the accident only a day laborer, and that his actual daily labor had not commenced, he being then in course of being carried by the defendants to his daily labor, was nevertheless engaged about tho work of tho defendant. (See Turner v. Midland Railway Company, L R'l CP o. 295.) It is'true that in that case it was alleged, and found by the jury as a fact, that the carriage to his work was part of this contract with the defendants. In the present case, no such question was expressly put to the jury, the plaintiff alleges tho fact to bo so in hi 3 first count; but treats himself as a stranger in the second count. The issue found is that he was in the truck by permission of the defendants. The plaintiff himself in his evidence says that he was engaged by and under one Mcintosh, who was the defendant's ganger or subcontractor, and that ho (Mcintosh) told him to go in the truck. He says "he had orders to go in the truck from Mcintosh's time-keeper and gaffer on the line. This evidence is uncontradicted, somo doubt is, by the evidence, thrown on the question whether tho plaintiff was in service of the defendants or their sub-contractor; butif hewas engaged inaworkwhich was under the control of the defendants or their servants, it is immaterial whether the defendants were his masters to pay or not (Wiggett v. Fox). See Turner v. Great Eastern Railway Company, 33 "Law Times," 431, where it was held the defendants contractor's servant was not the servant of the defendants; the reason was that defendants had not control over the work, though in' that case the defendants paid as well as had control: in the present case it doe? not appear that the defendants paid. In Tumor v. the Midland Railway Company, supra, thero is cited an Amorican decision, quite in point as to one part of tho question, Gilshannon v. the Story Brook Railroad Corporation, 10 Cush R., 228. Thero the plaintiff was a common laborer, employed in repairing the defendant's rail-bed at a place several miles from his residence. Each morning and evening he rode with other laborers, to and from the placo of labor, on the gravel train of the defendants. This was done with tho consent of the company, and for mutual convenience, no compensation being paid directly or indirectly by the laborers for the passage, and the company being under no contract to convey the laborers to and from their work. Whilel they were on thoir way to their work on one occasion, a collision took place with a car, through tho negligence of defendants' servants. The plaintiff was injured, but was held not entitled to sue the defendants—it was considered that he was engaged at tho time in the common employment. If that bo so, then Broad, the engine-driver, who was guilty of the nogligence and want of look-out, was in the service of the defendants, and was engaged in a common employment with tho plaintiff; and thero was, I think, no evidence of negligence of tho defendants in the employment of Broad. This being so, I conclude that se far as tho acts of Broad contributed to the accident, tho defendants aro not shown to be responsible. Then as to the alleged negligonco in driving the trucks in front of the locomotive, there is no evl dence that tho defendants personally interfered in the works at all. On the contrary, it is proved that thoy were out of the country and dirt not interfere. There is no evidence that thoy knew that tho practice was to carry the laborers to their work in trucks pushed in front of locomotives. Personal interference or knowledge must, I think, appear. If insufficient materials or implements aro, without the personal interference or knowledge of tho defendants, provided by tho defendants' servants, not negligently appointed, tho defondants are not responsible. See Wiginan v. Jay, 19 L. J, and though, according to somo of the authorities, it may seem open to question whether there is not an absolute duty to provide proper matorial3 and implements, nnd that pro"f of knowledge of insufficiency is not thrown upon the plaintiff, still that is not this caso: tho trucks and engines wore proper ; it was at most tho improper uso of them, authorised by tho defendants' manager, and for such impropor use it is clear that tho defendants aro not responsible, without personalintorferonco or knowlodgo. '.,.*'; ■, I am Inclined to think that, if tho defondants could be held responsible for tho practice, thero was some evidenco to go to the jury that the accidont was in part attributable to the driving tho truck in question in front of the engine, and that such a practice was dangerous and unnecessary; that though it appears from the evidence that when ballasting or shunting on a single lino such a practice was unavoidable, yet it was nevertheless dangerous;, but it did not, I think, appear that there was any necessity why the laborers should be carried in this truck so driven; they might havo been carried in a truck behind tho engine, and that would have been safe, and tho truck in front left empty, Tho train was not at tho time engaged either in ballasting or shunting, but in carrying tho men to But as no knowledge or personal interference of the defondants was shown, but disproved, and the defendants were sought to ba made responsible for this practice by reaso:< of Gwynneth, who it was alleged had tho general superintendence, and permitto'i or authorised this practice, the question was whether Gwynneth and tho plaintiff wore or not feuow-Borvants so 83 to exempt the defendants from liability for the

acts of Gwynneth, who was undoubtedly their servant. It w;is contended that Gwynneth, though the defendants' servant, was'also their agent, and that he came within the distinction indicated in some of the cases as existing where the act complained of te that of a "vice principal," "deputy master, or universal agent" in tho matter. t The evidence does not however show that Gwynneth was in any sense a vice principal, or proprietor, or universal agent in tho matter of their work. Ho was apparently a paid servant of the defendants; ho was engineer and manager, and necessarily with certain powers of agency. The cases of Allen v. the Now Gas Company, supra, and Wilson v. Merry L. E., 1 H. of L. So. Ap 326, and Howells v. the Landore Siemens Steel Company, dispose of this question. Tn tho latter case Blackburn, J., puts a question to tho counsel in argument, which remained unanswered. He asked whether it could be contended that the master of a ship could not bo the owner's servant. The question arose rather with regard to whether tho fact that a statute required that a manager should be certificated made him tho less a servant. Still it is evident that the question supposes that a master of a ship, certificated or not, is the servant of the owner withm the rule. Seo also per Willis, J., in Gallagher v. Pipes, 33 L.J. C.P. 335. Now the master of a ship, though he has very extensive powers as an agent, is not a viceproprietor, ho is not a universal agent, ho is in fact the servant of the owner and tho fellow-servant of the seamen, and so also are the other officers of the ship. As observed by Willis. J., in Gallagher v. Pipes, he is perhaps the most authoritative of agents." The fact that the fellow-servant is in a position superior to the plaintiff's makes no difference (see Wilson v. Merry, L.R. 1 Sc. Ap, 325). Byres, J., in Clarke v. Holmes, 31 L.J. Exch. 356, suggested that " a manager or agent" was not a fellow-servant within the rule; and in Gallagher v. Pipe 3, supra, retained that opinion, and acted upon it, differing from the rest of the Court. In - tho same case, Willis, J., though deciding that a foreman or manager was a fellow-servant within the rule, expressed himself as ready to consider the case of a partne as a person having "universal authority to act for the master in the matter." The case of a partner has been already decided and the case of a person having "universal authority in the matter" is still ope-i for consid ration; but such, I tliink, is not the present case; Gwynneth was not proved to bo more than engineer and manager, with certain powers as agent, as every manager must have. If the plaintiff had been injured by the fall 'of a structure of tho railway works, as a bridge, and that fall was attributable to the want of skill or negligence of Gwynneth in his orders to the men employed.Vit seems clear that tho defendants would not be responsible if Gwynneth were not negligently appointed, and there seems no distinction between such a case and the present; though the alleged negligence was rather in the general management than in a part Of tho contract work. It is sufficient, therefore, to say that Gwynneth was the servant of tho defendants, engaged in the same common object as the plaintiff, namely, the construction of tho railway, and that there is no evidence that he was negligently appointed. From the view I take, it is not necessary to express any concluded opinion as to whether the negligence of Gwynneth, if there wero such, was a causa causans. Such questions arc always difficult of solution. In the present case there were, It would appear, three causes contributing to the accident: If tho, truck had boon behind the engine instead of in front there is evidence to show that the existence of the obstruction on tho line would not have caused any accident, even though going at the speed proved. The immediate cause was perhaps the obstruction on the line. There Is, I think, some evidence to show that if the train had not been negligently driven, that is, if the speed had been less, the accident would probably nevertheless havo occurred. However, this is not very clear. Assuming, however, that there is evidence to show that notwithstanding the existence of the obstruction and Jthe high rate of speed, the accident would not have occurred had the trucks been behind the engine instead of in front, then I incline to think that the occasion of the accident is attributable to the propulsion of the trucks, and that that was a causa caiwans. No doubt the general principle is that if the negligent act would not havo been followed by the damage if other circumstances had not intervened, for which circumstances tho defendant is not responsible, the damage is not the proximate result of the negligent act, and is not sufficiently concatenated therewith (see " Addison on Torts," p. 5). But where a gas company so negligently constructed a pipe that the gas escaped into the plaintiff's house, and a workman who happened to be in the house went near the placo where the tras escaped with a lighted candle in his hand, which caused an explosion, it was held that tho gas company was nevertheless responsible. Burrows v. March Gas Company, L.R. 5 Exch. 67. Baron Pigott in his judgment says ;—" Tho principal question is whether the damage that resulted was the proximate or remote consequence of the defendant's negligence. It was argued for the defendants that it was too remote. Now, the mere fact that there is another cause brought in, without which the damage would not have occurred, does not in my view make the first and main cause a remote cause of the damage, it can only disentitle the plaintiff to recover in cases where tho ground may be taken that he ha 3 contributed that without which the damage would not have occurred. It seems to me that the escape of the gas was plainly the proiimate cause of the dama o of which the plaintiff complains. If that be so, though there is another cause without which tho explosion would not havo happened, yet that doos not disentitle the plaintiff to recover, unless he can bo affected by the negligent conduct of Sherratt" (the workman). ~ It seems to mo that when some other cause Intervenes which immediately brings about the damage, tho defendant is nevertheless responsible if it wa3 probable that such cause would intervene. If a person negligently leaves loaded firearms, or other dangerous thing, in a place where it Is probablo that some other person will set it in motion to the injury of othcra, and that injury is so brought about, he is responsible (seo Lynch v. Nurdin, 1 Q.B. p. 35). In the prosont case, if there was negligence in the mode of carriage of the plaintiff, it may perhaps be said that the existence of the obstruction, ono of tho contributory causes, w»3 probable; but can it be said that the negligence of Broad was also probable ? This I think open to doubt. It Is not, howover, from the view I tako, necessary to express an opinion as to the effect of these contributory causes. In answer to Mr. Macassey's contention that the plaintiff could recover on the second count, it is, I think, clear that he cannot. The count is based onthe supposition that the plaintiff was a stranger to the defendants, that he was only in the position of a person beingcarried gratuitously; but clearly that is not so; the evidence showed, as above pointed out, that he was in the position of a servant to the defendants, being carried as such, and not as a stranger gratuitously. Tho plaintiff failed also in his proof of negligence of the defendants. The negllgenco for which the plaintiff could hold the defendants responsible was only such as a master is responsible for to his servant, not such as a carrier, though gratuitous.is responsible for to Mb passenger. I think, therefore, that the defendants should have leave to enter a judgment for nonsuit.