5 JULY 1884, Page 17


ANOTHER victim has been done to death by a Railway Company at a level-crossing, and another unhappy family are being dragged by the Company through the Courts in pursuit of compensation for the loss which has been in-

flicted on them. The facts of the case are simplicity itself. The victim was waiting for a train at a small station on the Midland Railway. The night being cold, he took refuge

in the shed, which afforded the only shelter proffered by the Company, and which was on the side opposite to that on which the train was expected. The only way from one side of the station to the other was by crossing the line, there being no bridge or subway. Suddenly the victim saw the train coming up, there being no whistle, no bell, no porter even to announce its approach. He crossed the line to get to the other side and catch the train, and in doing so was knocked down by the engine and killed. Here, surely, one might say to oneself, was a case of responsibility on the part of the Company. They force their passengers to take shelter in a place from which the only access to the train is by crossing the line ; they provide no means of crossing except on a level with the train, and they give no notice that the train is coming. Surely the Com- pany are responsible when one of their passengers has fallen into the trap thus skilfully laid for him. At least, it would be, one would suppose, a question for a jury whether the victim had been guilty of negligence in trying to catch the train he came to catch, and not accurately measuring his own speed and that of a train which came suddenly on him, and•so had contributed to the success of the trap. But, happily, in this country the law is no vulgar compound of common sense and common justice, but of science and precedent and skilled erudition. According to English law, as laid down by Mr. Justice Field and his learned brethren, Manisty and Lopes, not only is the Company not responsible in such a case, but it is not even a question for the jury whether it is responsible. If a man, having no other alternative, walks across a line in front of a train, that, per se, is negligence on his part, and the Company is exonerated, though it afforded, as Mr. Justice Lopes tersely put it, " No bridge, no porter, no bell, no whistle." "A passenger was comparatively unacquainted with the speed of advancing trains, while the Company's servants were more experienced, and he should have thought it was a question for the jury whether reasonable precautions had been taken." So far, so good, and every one will agree with the learned Judge ; but then he goes on to say, " had it not been for the conduct of the passenger himself, who had seen the train coming and yet chose to run across the line." Astounding passenger who, having waited for a train, tried to catch it when it came ! What could he expect but death ? Mr. Justice Field, in a judgment which, according to Mr. Justice Lopes, was "one of the ablest ever delivered on the subject," laid down the law that " if the evidence for the plaintiff was such that a reasonable man could not but come to the conclusion that the death was owing in part to the negligence of the passenger himself, to his own rashness and want of care, then the Judge ought to direct a non-suit, and he came to the conclusion that it was so in the present case." Now, the law, that if there is any negligence on the part of the victim the victimiser is not responsible, is harsh enough, and is cer- tainly open to question in principle, though it has been too long settled to be open to dispute in practice. After all, no one has any business to lay traps for others, and then go scot- free if people fall into them by not keeping their eyes wide enough open. For our part, we are strongly inclined to think that the Greek philosopher who fell into a well while gazing at the stars had good reason to complain, and ought to have had a good cause of action against the owner of the well for not having fenced it properly, so as to prevent the possibility of even a star-gazer from falling in. Star-gazing is a harmless and possibly meritorious pursuit, and so is getting into a train ; and it does seem hard that an astro- nomer may not conduct his business, and a passenger may not try to get to his train, without being held to be guilty of contributory negligence. However that may be, it is a trifle strong, while trial by jury is still a palladium of British liberty and British safety in purse and person, that the ques- tion of negligence or no negligence should be withheld from the jury. The question whether a " reasonable man " would come to a given conclusion is pre-eminently a question for the jury, who, by virtue of their office, are presumed to be reason- able men, and the standard of that " right reason " which is the guide of practical men. But we are not aware that there is any such presumption in the case of Judges. Certainly, the conflicting decisions of the Courts in these railway cases, and particularly in the notorious Smitherman case, afford no ground for raising any such presumption. In the present case, Mr. Justice Butt and the twelve jurymen over whose deliberations he presided at the trial came to the con- clusion on the evidence that the negligence of the Company was established, and they gave £100 damages. But three Judges, in whose favour there is no presumption of reasonable- ness, have overruled one Judge of certainly not less eminence and twelve men who are presumed to be reasonable, and who at all events had all the evidence before them, and decided on the whole case. The case is, of course, going to the Court of Appeal ; and the plaintiffs may feel themselves happy if they do not, as in the Smitherman case, get carried twice up to the House of Lords and appear before three several juries, and still happier if they succeed, as Miss Smitherman succeeded, in sustaining the verdict of the jury at the end. Meanwhile, it must be consoling to them to think that they are not examples of the action of that " cheap law and speedy justice" which the Master of the Rolls thinks would exercise such a fatal effect upon the English character and constitution.

It is curious, in the face of the action of the Midland in following the evil precedent of the South-Eastern Company, and resisting by all possible means compensation for the " accidents " which have resulted and always will result from level-crossings at stations, that the Great Western has lately taken the lead in resisting any passage by traction•engines over level-crossings, except under the most stringent conditions. What is sauce for those poor old lumbering geese ought to be sauce for those swift-flying ganders of passenger trains and engines. The fact is, and it becomes more evident with every year that passes, that the mere existence of a level-crossing at a station, should be of itself conclusive evidence of negligence ; and short of absolute suicide, the Company should be made re- sponsible for every " accident " that happened in connection with it. These cases form one of the strongest possible arguments in favour of passing at least some part of Mr. Chamberlain's Rail- way Bill. By one section of that Bill the Railway Commissioners are empowered, on the application of either the Board of Trade or of a local authority, to order a Company to provide sub- ways or bridges at level-crossings, or foot bridges at cross- ings, " which may seem requisite in the interest of public safety ;" and by another section the Board of Trade may cause an investigation to be held if the stations of a railway are "in such a condition as to be dangerous to the public," and report to Parliament. It might be well even to forbid • level-crossings for passengers at stations altogether. At all events, the indiscriminate slaughter which takes place at present ought to be checked, if not stopped altogether. People should, at least, be given the opportunity of reaching trains without risk and without the necessity of exercising as much care and caution as if they were on an Alpine summit or crossing a rifle-range at Wimbledon. The present state of the law, as laid down by Mr. Justice Field, is such, that even the poor remedy of compensation to himself or to his surviving relations is denied to the mangled or murdered victim. Not only is it easier to pass the Railway Bill than to amend Judge-made law, but prevention would be in any case better than cure. It would be far better, in the interests of the public and Railway Companies alike, to remove the possi- bility of danger and provocation to disaster, than even to render it easier to obtain redress after the event.