Halliwell v Johannesburg Municipal Council

• Jurisdiction: South Africa
• Judge: Coram Innes ACJ, Solomon J, CG Maasdorp JP, Laurence J and Wessels J
• Judgment Date: 02 November 1912
• Citation: 1912 AD 659
• Hearing Date: 17 September 1912
• Court: Appellate Division

Innes, A.C.J.:

All public streets and thoroughfares at Johannesburg are by statute vested in and placed under the control of the defendant Council; which body is by the same ordinance authorised to construct, alter, and keep in repair all such streets, and to construct, maintain and work a system of tramways within the Municipal area. The clauses under both these heads are permissive in their terms. There is nothing in the statute which directs the Council either to repair the streets or to construct tramways upon them. Acting under the powers conferred upon it, however, the Council has equipped and is working an extensive system of trams, mainly along thoroughfares previously made up for public use. A double line, being portion of this system, runs down Eloff Street in the direction of Park Station. At the intersection with De Villiers Street another double line branches off towards Braamfontein, the actual junction of the metals being in Eloff Street opposite the, University College. The space between the rails of each line, between the lines themselves and for a short distance beyond is laid with blocks of concrete, into the outer face of each of which smaller stones have been inserted, so as to ensure a certain degree of roughness. The effect of traffic is gradually to wear away these stones and thus produce a smoother surface. The blocks at this particular spot (referred to in the evidence as cobbles) were laid by the defendant in 1907.

On the morning of the 25th December last the plaintiff was driving slowly down Eloff Street in a one-horse dog cart, and was desirous of turning into De Villiers Street, not in the direction of the diverging rails, but in the opposite direction. It became necessary for him, therefore, to turn to his right and cross the rails and cobbles

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for that purpose. While doing so, his horse side-slipped and fell cleanly and heavily to the ground. The shaft was broken the horse was slightly hurt, and the plaintiff was thrown out, sustaining a compound fracture of the right wrist and lesser injuries to the other. Thereafter he sued in the Magistrate's Court for damages, alleging that the fall of his horse was due in the first place to the negligent and uneven manner in which the cobbles had been originally laid, and in the second place to the fact that the surface was slippery and not fit for horses to travel over, this condition being caused, it was specially stated, by grease from the lines carried on to the cobbles by passing traffic. The Magistrate gave judgment for the plaintiff, to whom he awarded damages in the sum of £75. He found as a fact that the corner in question was dangerously slippery; this slipperiness might, he thought, have been accentuated by the grease from the rails, but not to any appreciable extent. He was satisfied that the fall was caused by a slip upon the concrete, and the accident was therefore due either to improper construction in the first instance, or to the fact that the concrete blocks had been allowed to become dangerous as the result of constant traffic. Instead, however, of definitely deciding what was the actual cause, he dealt with the matter in a way which has added materially to the difficulties of the inquiry. If the fault lay in original improper construction, he said, then the liability of the defendant was clear; if it did not, then the cobbles being in intendment of law accessories to the tramway and not portion of the road, the Council would be liable for allowing an artificial structure placed by it upon the highway to become dangerous. So that whichever of the only two possible causes was the true one, the defendant was legally responsible; under these circumstances he did not consider it necessary to express any more definite opinion upon that portion of the case.

The matter then went on appeal to the Transvaal Provincial Division, where by a majority the Magistrate's judgment was reversed. Full reasons were given by the members of the Court, in all of which the facts as found by the Magistrate were accepted, and the law was

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elaborately discussed. SMITH and CURLEWIS, JJ., held that the evidence did not show that the cobbles, at the time they were put down, were unsuitable for their purpose, or were improperly laid; also that they formed portion of the road, the repair of which was not obligatory on the Council. That being so, the fact that they were allowed to become dangerously slippery amounted to mere non-feasance, for the consequences of which, according to law, the defendant Corporation was not answerable in damages. DE VILLIERS, J.P., on the other hand, was of opinion that even if the concrete blocks were not accessories to the tramline but portion of the ordinary road (which he doubted), yet the Council, having placed them in the street, was responsible for seeing that they did not thereafter become a source of danger to the public. That it either knew or ought to have known of their subsequent slippery condition, and was therefore rightly cast in damages caused to the plaintiff thereby. Judgment was under these circumstances ordered to be entered for the defendant; and it is the correctness or otherwise of that order which is now in issue.

As already pointed out, the Magistrate's main findings of fact were accepted by all the Judges below. Any divergence of view among them arose upon considerations of law. It was the interesting legal questions raised by this case which were discussed in the judgments, and it was to these questions that the arguments before us on appeal were mainly directed. At the same time, the decision of the trial Court upon the facts was challenged by counsel for the defendant, and it becomes necessary therefore to deal with that aspect of the matter before proceeding further. And first with regard to the condition of the cobbles. The Magistrate found that the corner of Eloff and De Villiers streets was at the time of the accident "dangerously slippery." Unfortunately he does not state in detail the grounds for his conclusion. All he says is that he was satisfied on that point "from the evidence." Judging from the context, I gather that he was impressed by the statements of some of the witnesses (more especially Constable Mustey) to the effect

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that accidents were far more frequent at that spot than at other street corners. But I confess that I am not inclined to attach the same importance that he did to that testimony. Because, even if an accurate observation had been maintained, and if the results had been more striking than they were, it would be impossible properly to appraise such evidence, without a more detailed knowledge of local circumstances than it is possible to obtain from the record. It would be necessary, for instance to know something about the gradient of the road, the nature of the traffic, and the degree of control before instituting any useful comparison between one locality and another in regard to the frequency of street accidents. The fact that there have been a certain number of cases in which horses have slipped and fallen at this particular corner is certainly an element to be considered; but it does not, taken alone, establish the plaintiff's case. There is, however, stronger evidence upon the record. The plaintiff himself said that the stones were very slippery, and that on the day of the accident they were as slippery as glass. He was corroborated by McKenzie, an inspector of the Society for the Prevention of Cruelty to Animals, who had paid special attention to this corner. "The blocks are quite polished," he said: "there are little stones in the blocks, but these little stones do not protrude." And again, "traffic polishes the cobbles, and when the weather is hot it causes the horses to slip." Similar evidence was given by White, a livery-stable keeper in the vicinity. On the other hand, the officials and professional employees of the Council who were called as witnesses were strongly of opinion that the cobbles, though they had experienced a certain amount of wear and tear, were safe for traffic, and suitable for the purpose they were intended to serve, and that there was no need to take them up. In view of this conflict it is important to bear in mind that the Magistrate made an inspection in loco, and though he makes no reference to it in his reasons, I cannot think that he would have come to the conclusion that the corner was "dangerously slippery" unless the results of his own observation had confirmed the testimony of the witnesses called for the

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plaintiff. I am not prepared therefore to differ from his finding on this question of fact.

But the trial Court also held that the fall of the horse was due to its slipping upon the cobbles, and it is necessary to consider that point. In the nature of things the direct evidence with regard to it could not be very strong. For neither the plaintiff who was in the cart, nor Evans (the only other person present), who was fifteen yards away, could be expected to locate exactly where the horse's feet were Placed when he slipped. Halliwell, however, was very positive as to the spot where the fall took place. "I was making the turn when the horse slipped," he said, "right between the two Park Town lines before I reached the Park Station line," and if that be correct, then the accident occurred on the cobbles between the two sets of rails. The witness marked the spot on the plan with a cross, which the record states he subsequently superseded by a blue cross. Evans also marked the spot, which he said was at a V plate. Unfortunately the plan submitted to us shows only one mark, and that is placed between the rails of the first Park Town line. So that there is very little assistance to be gained from that source. The Magistrate, however, was influenced by the circumstances of the actual fall. According to the plaintiff, the horse came...