Celliers v South African Railways and Harbours
Jurisdiction | South Africa |
Judge | Jansen J |
Judgment Date | 23 December 1960 |
Court | Transvaal Provincial Division |
Citation | 1961 (2) SA 131 (T) |
C Jansen, J.:
At about 3 a.m. on the 28th of December, 1958, the plaintiff was driving a motor car along Bree Street, Johannesburg, from west to east. At the same time a train consisting of a locomotive pushing eight trucks was moving from north to south along a railway line in West Street, Johannesburg. West Street (and the railway line) crosses D Bree Street. In the intersection train and motor car collided. The car was badly damaged and plaintiff seriously injured. Plaintiff claims damages from the defendant. It is common cause that the train was under the control of the defendant's servants acting within the scope of their employment. Negligence on their part is alleged.
E Plaintiff and his only passenger, a young man named Harvey, gave evidence. But they were both seriously injured in the collision and lost consciousness. They claim retrograde amnesia. They did not, therefore, testify to the events during the crucial moments before the collision. The only witness plaintiff was able to call in this regard was Head F Constable Pienaar of the C.I.D. Purely fortuitously he was driving his motor car from east to west along Bree Street at about the time of the collision. He arrived at the intersection in question only after the actual collision - but, according to him, so soon after that the train had not yet come to a stop. He had seen no person with a red lamp G in the intersection, had heard no whistle. It is common cause that the train carried no light except that of the engine at the rear. If in fact his arrival was so soon after the collision, his evidence would strongly tend to show that no such warning of the train's approach or presence was given to traffic in Bree Street. Pienaar is in no way concerned in the result of this trial and impressed me as an honest witness. I accept H that he believes that he all but saw the actual collision. But I think that he must be mistaken about his time of arrival in relation to the actual collision. He did not hear the impact (the force of which can be gathered from the photograph of the car after the collision, exh. 'D'); he did not see the lights of the plaintiff's car approaching the intersection from the west, only to be suddenly extinguished as the collision occurred. The only reasonable explanation would seem to be that he was too far away to either hear or see the
Jansen J
impact. His evidence of first noticing the trucks barring his way 25 yards ahead, his then turning left down West Street alongside the railway line and of his subsequent movements and observations, does not appear to be too seriously inconsistent with his arrival only at a stage when the train was being moved in an attempt to disengage it from the A car impaled on the coupling of the truck in front. It would seem that Pienaar does not materially assist in the determination of the events immediately prior to and during the collision.
These events must, in the main, be gathered from the evidence of: Gerber, the driver of the train; Brink, the stoker; Basson, the shunter, and his assistants Bezuidenhout and Botha; and John Mtshali, at the time B a constable in the South African Police, who was at the southwest corner of the intersection when the collision occurred. (A coloured constable Robert Nicholas, who was with the latter, was not called). These witnesses were all called by defendant, with the exception of Basson who was tendered for cross-examination - a tender accepted by C the plaintiff. Even bearing in mind the possibility of bias of some or all of defendant's servants, there appears to be no reason to doubt the honesty of these witnesses. Nothing adverse appeared from their demeanour. Such inconsistencies as emerged seem explicable by a natural diversity of observation and recollection. It might be as well to mention one of the inconsistencies. All these witnesses except Basson D mentioned the whistle being sounded; Basson questioned about the approach of the train after he had given an all clear signal from the intersection, could not say whether the train was already approaching the intersection when he noticed plaintiff's car - 'nothing attracted my attention'. He could not remember whether the whistle was sounded or E not. The explanation that this was because he hears so much whistling of trains, does not, however, seem unreasonable.
The evidence of these witnesses must be seen against the available data of the nature of the crossing and its environments. In this regard there are the observations of Major Simons, an expert witness called by plaintiff, and his plan (exh. 'C'), a plan drawn to scale (exh. 'B'), a F collection of 13 photographs (exh. 'E') and the observations at an inspection in loco (the record of which was drafted by counsel and agreed to).
It appears that the line in question is a private line running from the Braamfontein yard to the power station south of Bree Street. The G intention was to deliver coal to the power station. The train consisted of a steam engine pushing eight trucks on bogeys, loaded with coal; the front truck carried no light. This train stopped with the front truck at a set of points about 100 yards from the intersection. Basson and Bezuidenhout went ahead into the intersection to see whether all was clear. Each had a paraffin lamp with him (a hand signal lamp) normally H throwing a yellowish beam but which could be changed to green or red. Basson and Bezuidenhout went to the middle of Bree Street and stood on either side of the railway line, Basson a few paces to the west and Bezuidenhout to the east. They noticed no traffic approaching from either direction and Basson signalled with the yellowish beam that the train could proceed. The driver, Gerber, could not see the intersection nor the signal - buildings and a curve
Jansen J
in the line caused them to be out of sight. But Botha had been stationed at a point in between in order to relay the signal from Basson to Gerber. He did so. Gerber acknowledged the signal with a short blast of the whistle and then put the train into motion towards the crossing, now A sounding the whistle continuously. The precise speed of the train is not apparent.
The engine had no speedometer, but Gerber estimates his speed at 3 - 4 miles per hour. Basson said that it usually moved at a fast walking pace. In argument both counsel assumed a speed of 4 - 5 miles per hour. As the train was moving forward Botha climbed on to the steps of the B third truck ahead of the engine. Meanwhile Basson and Bezuidenhout were still watching for approaching traffic, the former pointing his lamp to the west and Bezuidenhout to the east. The lamps were then red. Basson saw the lights of a car approaching from the west; the road drops to the west at a ratio of 1 in 14 and the car was then some considerable C distance away. As the car approached Basson started swinging his red lamp in an arc, the lamp being at the bottom of a pendulum formed by his arm hanging down. Bezuidenhout, observing no traffic to the east, but becoming aware of the car coming from the west also pointed his lamp in that direction, swinging it in a similar position. The car did not react until at a very late stage when it swerved slightly to its right. Basson D had to jump to get out of its way. The train and car then collided, the car being impaled upon the coupling of the front truck. The point of collision is not clear but it was probably between the two sets of tramlines in Bree Street, i.e. at the middle of Bree Street or slightly to the south thereof. Basson was too shaken to do anything, but E Bezuidenhout clambered over the moving truck alongside him, to the west, and pointed a warning red signal to the north, which was seen by Botha who relayed it to Gerber. He applied the brakes and the train was stopped with the front of the leading truck some distance to the south of the intersection. (In cold print climbing over the moving truck seems rather an extraordinary feat on the part of Bezuidenhout, but at the F inspection he demonstrated that he could do it with facility and speed, even holding a lamp in his one hand.)
Fundamental to plaintiff's case is that some negligence is to be ascribed to the defendant. In the declaration negligence in a large G number of respects was alleged. In argument at the close of the evidence Mr. Mandel, for the plaintiff, if I understood him correctly, relied on only two grounds: (a) the absence of adequate warning of the approach of the train, (b) the failure to stop the train immediately south of the intersection before proceeding across Bree Street. In respect of the latter Mr. Morris, for the defendant, submitted inter alia that it was H not covered by the pleadings. But in my view the question of defendant's negligence, if any, falls to be decided solely by the adequacy or otherwise of the warning given of the approach of the train.
It seems plain that in allowing the train to enter the intersection in the manner it did, defendant's servants were relying wholly on the reaction of traffic, which might then be approaching to avoid any possible collision.
[The learned Judge then analysed the evidence and proceeded.]
Jansen J
From the aforegoing it is apparent that a hazard to traffic in Bree Street was created by allowing the train to proceed and enter the intersection in the manner it did. This has been demonstrated by tedious computations. But it would seem that a reasonable man directing operations would have realised the existence of such a hazard even A without these computations: obviously the train would take so long to reach and cross the intersection that there would be a risk of traffic reaching the intersection before the operation was concluded and, obviously, once the train entered the intersection there would be a grave risk that it would not be possible to stop the train in time if an emergency arose. It seems fruitless...
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...A Case law Buthelezi v Ndaba 2013 (5) SA 437 (SCA): dictum in para [14] applied Celliers v South African Railways and Harbours 1961 (2) SA 131 (T): referred to Herschel v Mrupe 1954 (3) SA 464 (A): referred to B Jackson v Jackson 2002 (2) SA 303 (SCA): referred to Kruger v Coetzee 1966 (2) ......
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Haffejee v South African Rail Ways and Harbours
...in cases such as Worthington and Others v CSAR 1905 TH 149; Pretoria City Council v SAR & H 1957 (4) SA 333 (T); B Celliers v SAR & H 1961 (2) SA 131 (T). The question however remains whether, at a crossing such as the present one, something more is required of the defendant. In Dyer v Sout......
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General Tyre & Rubber Co (SA) Ltd v Kleynhans and Another
...the driver of the H tractor were at fault in relation to damage (see also the case of Cilliers v South African Railways and Harbours, 1961 (2) SA 131 (T) at p. 141, and the case of Norwich Union Fire Insurance Society Ltd v Tutt, 1960 (4) SA 851 (AD), where the question appears from the jud......
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Jacobs and Another v Transnet Ltd t/a Metrorail and Another
...A Case law Buthelezi v Ndaba 2013 (5) SA 437 (SCA): dictum in para [14] applied Celliers v South African Railways and Harbours 1961 (2) SA 131 (T): referred to Herschel v Mrupe 1954 (3) SA 464 (A): referred to B Jackson v Jackson 2002 (2) SA 303 (SCA): referred to Kruger v Coetzee 1966 (2) ......
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Haffejee v South African Rail Ways and Harbours
...in cases such as Worthington and Others v CSAR 1905 TH 149; Pretoria City Council v SAR & H 1957 (4) SA 333 (T); B Celliers v SAR & H 1961 (2) SA 131 (T). The question however remains whether, at a crossing such as the present one, something more is required of the defendant. In Dyer v Sout......
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General Tyre & Rubber Co (SA) Ltd v Kleynhans and Another
...the driver of the H tractor were at fault in relation to damage (see also the case of Cilliers v South African Railways and Harbours, 1961 (2) SA 131 (T) at p. 141, and the case of Norwich Union Fire Insurance Society Ltd v Tutt, 1960 (4) SA 851 (AD), where the question appears from the jud......
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General Tyre & Rubber Co (SA) Ltd v Kleynhans and Another
...the driver of the H tractor were at fault in relation to damage (see also the case of Cilliers v South African Railways and Harbours, 1961 (2) SA 131 (T) at p. 141, and the case of Norwich Union Fire Insurance Society Ltd v Tutt, 1960 (4) SA 851 (AD), where the question appears from the jud......