Reid v South African Railways and Harbours

• Jurisdiction: South Africa
• Judge: Fannin J
• Judgment Date: 27 November 1964
• Citation: 1965 (2) SA 181 (D)
• Court: Durban and Coast Local Division

Fannin, J.:

In this case the plaintiff, a young European man, sues the defendant for damages arising out of an accident in which he came into collision with an electric train operated by the defendant, as a result of which he was gravely injured. The incident took place between 9.15 and 9.30 p.m. on the night of 2nd November, 1962, at a road and

Fannin J

rail crossing a few hundred yards from the Hammarsdale station on the main line between Durban and Pietermaritzburg. It was common cause that the train in question was driven by an employee of the defendant in the A course and within the scope of his employment, and, although in the pleadings the defendant denied that the plaintiff had received his injuries as a result of a collision between himself and the train, at the trial it was not seriously contested that he had been injured in that manner. The only direct evidence as to how the plaintiff came to be B injured was his own, for neither the driver of the train nor his assistant nor anyone else became aware of the collision until some time after it had happened, when a member of the South African Police found the plaintiff lying injured near the crossing. The plaintiff's evidence was that on the evening in question he had had supper at the home of a C Mr. and Mrs. Kruger, who lived in a railway cottage near Hammarsdale station and which is shown as 'House No. 3' on a plan drawn to scale and put in in evidence, by consent of both parties, as exh. 'A'. The plaintiff habitually had his evening meal at this house, where he was very friendly with the elder daughter of the Krugers, a Mrs. Botes. According to his evidence, when he knocked off work at a dam D under construction for the Department of Water Affairs at Hammarsdale, where he was employed as a carpenter handyman, he was invited by a Mr. Abbott, a fellow employee, to go with him and two others, Messrs. Nel and Mostert, to the Cato Ridge Hotel to celebrate Abbott's birthday. He refused partly because he did not like Abbott very much and partly E because he was busy at the time making a toolbox for himself and was anxious to get on with it. After he had had supper at the Krugers' house he went and sat on the front verandah with Mrs. Botes. At about 8.30 p.m. Abbott, Nel and Mostert arrived in a motor car, all under the influence of alcohol. Mr. and Mrs. Kruger were away but their two daughters, Mrs. Botes and a young sister called Elizabeth, then aged F about 14 years, and a younger brother aged about 13, were all at the house. Abbott had with him a jar which, although partly empty, still contained about a bottle of wine. All present, that is to say, seven people including the plaintiff, drank a toast to Mr. Abbott's birthday, the plaintiff's share being about half a cup of the wine. After that the G girls put on some records and there was some dancing, in the course of which the plaintiff tried to dance with Mrs. Botes, but he was not very successful because the music was 'boeremusiek' and he was unused to the time of such music. He spent, he said, most of the time talking to the younger brother in the latter's bedroom. By about 9.30 p.m. the party H was getting noisy, and he could see that Abbott and his friends, being under the influence of liquor, were getting argumentative. He thought there might be trouble especially as he and Abbott did not get on very well together, so he told Mrs. Botes he was going, and why he was going, and he set off for the camp where he lived, leaving through the back gate of House No. 3 and taking a road which led towards the level crossing where the accident took place. It was a very dark night, as there was no moon, it was overcast and drizzling. He had no torch. It was necessary for him to cross the railway line at the level crossing,

Fannin J

which is shown on the plan exh. 'A', in order to go to his quarters at the camp. He had often done this before and knew that there was a level crossing there. At the crossing the surface of the road was dark being composed largely of coal or cinders, and the four railway lines comprising the up and the down main lines were at the crossing sunk A below the level of the road surface. Because of this and of the colour of the road surface and because it was so dark, it was quite impossible to see precisely where the railway lines ran, for there was no form of illumination whatsoever at the level crossing. As he approached the intersection of the road upon which he was walking and the road leading B to the level crossing he heard a train coming towards the crossing from the direction of the Hammarsdale station, and he heard a long blast on the hooter of the train. He also glanced in that direction and saw the train. In evidence he estimated that, when he turned the corner, the head of the train was just past the Krugers' cottage. He walked on C towards the level crossing, a distance, it appears from the plan, of some 30 to 40 feet. As he did so the train was approaching from his right. On a previous occasion when walking over the level crossing in the dark he had tripped, and he decided that it would be safer to stop and allow the train to pass before going over the lines. As he could not see exactly where the lines were, he looked to his right in the D direction of Hammarsdale station where there were lights on the platform which he could see from where he was. Between himself and the platform was a bank running along between the railway line and the railway cottages, this bank being also shown on exh. 'A'. The bank could be seen from the railway crossing against the background of the lights E at Hammarsdale station - some 500 yards away. He knew from past experience that if he stopped roughly in line with what he could see of the embankment he would be short of the railway lines at the level crossing. He estimated that when he stopped in that position he would be about five or six feet from the nearest railway line, which was the line upon which the approaching train would travel. And he considered that F that was a safe distance. When he stopped he turned his head to the right to watch for the oncoming train. The lights of the train were dimmed, brightened, dimmed and brightened again. When the train was at a distance which he put at about 40 to 50 yards from him the lights came on bright for the second time and shone straight into his eyes and G temporarily blinded him. He looked away and as his eyes cleared he saw that he was very close to the railway line. By this time the train was almost upon him and he realised that he was in danger. He tried to step back but at that moment the leading electric unit went past him at what he described as a very fast pace - he thought faster than 30 to 35 H miles per hour. The wind caused by the passing engine threw his jacket up behind him to his head and he felt a strong current of air blowing him towards the train. He put out his hand and, he thought, touched the unit twice but he was unable to keep his balance and, as he described it, he was 'sucked' towards the train and struck in the back by what he thought must have been the front of the first coach behind the second unit. He remembered nothing more until he recovered consciousness in hospital the next morning. The medical evidence was that

Fannin J

he was suffering from an abrasion of the head, which probably caused concussion, and it was subsequently discovered that he had received a serious injury to the spinal column which, in spite of extensive and A long continued treatment, has left him permanently paralysed from approximately the waist downwards. According to the plaintiff he had abrasions on his hands which, when he looked at them in hospital had been painted with some red substance.

As the plaintiff was the only eye-witness his evidence must obviously be carefully scrutinised. In the pleadings not only did the defendant deny B that he had been injured in a collision with a train at all but it also alleged (in the alternative) that he had been negligent, inter alia, by attempting to go over the railway crossing at a time when he was under the influence of alcohol and unfit to do so with safety and had in consequence walked into the moving train. The attempt by the C defendant to show that the plaintiff was under the influence of alcohol completely failed. The plaintiff was a very good witness and gave his evidence without any apparent attempt to exaggerate either the events leading to the collision or the unfortunate consequences of it. It was common cause that at or about the time when the plaintiff left the Krugers' house a constable in the South African Police was there. In D addition there were five other people present in the house at the time (Mostert having left earlier), and not one of them gave evidence to suggest that he was in any degree under the influence of alcohol. It was common cause that, when he was examined at the hospital, in a state of unconsciousness, there was on his breath a smell of liquor described by E the examiner as '+ + +'. The only medical witness called said that that would indicate a strong...