Sand and Company Limited v SA Railways & Harbours

• Jurisdiction: South Africa
• Citation: 1948 (1) SA 230 (W)

Sand and Company Limited v SA Railways & Harbours
1948 (1) SA 230 (W)

1948 (1) SA p230

Citation	1948 (1) SA 230 (W)
Court	Witwatersrand Local Division
Judge	Ettlinger AJ
Heard	October 16-17, 20, 1947; October 21, 1947
Judgment	November 6, 1947

Flynote : Sleutelwoorde

Negligence — Shunting in a Railway goods yard — Duty of users of goods yard — When shunters liable — Train Working Regulation 127 — Scope of — Breach of a Statutory duty — When tantamount to negligence.

Headnote : Kopnota

Shunters are entitled to assume that persons using the Railway yard will take proper precautions for their own safety and will not encroach upon a railway track except perhaps after having made certain that no truck is about to be shunted onto the track. A shunter should keep a proper look out, and if he actually sees an obstruction on a track, or about to cross the track, he must do what he can to avoid an accident, but he need not carry out his shunting duties on the assumption that users of a shunting yard will recklessly expose themselves or their property to danger.

Where a Statute prescribes that certain precautions are to be taken for the safety of others, then a failure to take such precautions resulting in injury will, per se, found an action for damages provided that the Statute is enacted for the benefit or protection of a particular class of persons, and the injured person is of the class. But where the purpose of a Statute is not the protection of the injured person or the class to which he belongs, then a breach of the Statute does not per se constitute a breach of any duty of care owed to the injured person on which an action may be based.

Regulation 127 of the Train Working Regulations dealing with shunting is not enacted for the benefit or protection of the public. It is enacted for the preservation of the property of the Administration from damage and for the protection of the servants of the Administration from personal injury.

Case Information

Action for damages. The facts appear from the reasons for judgment.

N. Philips, for the plaintiff: Plaintiff's driver was admittedly negligent but defendant's servant was also negligent. There was a failure to exercise that degree of care which the circumstances demanded. See Cape Town Municipality v Paine (1923 AD at p. 229); Bowhill v Young (1943, A.C. at p. 104). There was a legal duty to take care and a failure to take such precautions against harm happening to another which a reasonably prudent man would have taken. See Cape Town Municipality v Paine (supra at p. 216); Joffe & Co., Ltd v Hoskins (1941 AD 431 at p. 451); Cowan v Ballam (1945 AD 81 at p. 87); Transvaal Provincial Administration v Coley (1925 AD at p. 27); Glasgow Corporation v Muir (1943, A.C. 448). There was a need for warning by the defendant but no such warning was given. Cf. Jones

1948 (1) SA p231

v. G.W. Railway Co. (144 L.T. 194). As to the duty of railways at dangerous crossings, see Mancho v S.A.R. & H. (1928 AD 89 at p. 93); Estate Walton v S.A.R. & H. (1940 AD 321). See also Macintosh & Scoble (2nd ed., pp. 344 - 349). There was a breach of Statutory regulations on the part of defendant. This is evidence of negligence. See Lochgelly Iron & Coal Co v M'Mullan (1934, A.C. 1); Joseph Eva Ltd v Reeves (1938, 2 K.B. at p. 403); Morley v Wicks (1925, W.L.D. 13); Good v Posner (1934 OPD 97); Bellstedt v S.A.R. & H. (1936 CPD 399); Steenkamp v Steyn (1944 AD 536); Rex v Nathan (1938 TPD 170). Defendant had the last opportunity of avoiding the accident. See Sutherland v Banwell (1938 AD 476): Pretorius v African Gate & Fence Works (1939 AD 571); Pierce v Hau Mon (1944 AD 175). The negligence of defendant was therefore the proximate cause of the accident. Cf. Davies v Mann (152 E.R. 588); Pole v Johannesburg Municipality (1908, T.H. 155); Ramatlo v Kurland (1930 TPD 435); Bluaberg v Kleynhans (1938 CPD 305); Cooper v Armstrong (1939 OPD 150). Further on the facts.

H. J. Hanson, K.C. (with him J. D. Cloete), for the defendant: The onus is on the plaintiff to prove negligence and this onus has not been discharged. The shunting yard was private property where shunting was carried on in an obvious way. The defendant's only duty to the public was to safeguard them from traps and hidden dangers. See Norman v Great Western Railway Co. (1915, 1 K.B. 584); Hill v Pettigrew (1936, A.C. 69). Invitees who came to the yard had to make reasonable use of it. It was unreasonable for plaintiff to cross the rails at the point he did cross. The defendant could not reasonably have foreseen such act. See Martindale v Wolfaardt (1940 AD 235); Cowan v Ballam (1945 AD 81); Carnie v S.A.R. & H. (1927, W.L.D. 46). The 'Train Working Regulations' were enacted for the protection of Railway property from damage. See Carnie's case (supra). They impose no duty on the Administration towards the public. Further on the facts.

Philips, in reply.

Cur. adv. vult.

Postea (November 6th).

1948 (1) SA p232

Judgment

Ettlinger, A.J.:

This is an action for damages arising out of a collision which occurred on the morning of the 9th March, 1946, at the Newtown shunting yard of the defendant between a truck No. 4893 being shunted from West to East and a motor lorry T.J. 51640 belonging to the plaintiff. As a result of the collision the lorry was pushed on to another motor vehicle, T.J. 35222 belonging to the plaintiff, both vehicles being badly damaged.

The yard in which the accident occurred was a busy area over which a number of railway lines passed more or less from West to East and the accident occurred on line number 11, one of the lines towards the middle of the yard. The various tracks spread out from the West towards the East from a series of points, enabling trucks from the main lines to the West to be diverted Eastwards on to any one of a series of lines. There was a slight downgrade from West to East and there was also an appreciable bend in the tracks towards the left as one proceeded Eastwards.

The exact layout of the area as it was at the time of the accident is depicted on an accurately drawn plan put in by consent at the trial. Since March, 1946, however, the area has been reconstructed and only tracks 14 to 17 and the tracks to the livestock yard remain in the position in which they were at that date. In particular tracks 9 to 12 are no longer in the condition in which they then were.

An inspection in loco was held and a general idea of the area and the methods of shunting was gained but the inspection could not assist in visualising the scene of the accident as it was at the time.

The accident occurred at about 8.30 a.m. on the morning of the 9th March, 1946, when the shunting yard was as usual, extremely busy, and there were a number of trucks on the various tracks and a number of private vehicles between the various tracks offloading goods from the trucks. In particular there were, between tracks 10 and 11, the two vehicles involved in the accident, a horse drawn trolley belonging to certain Fihrer & Son and driven by the witness Josiah and at least one other large motor lorry also belonging to Fihrer & Son and driven by the witness Obed. This motor lorry was facing West next to a truck on line 10, the horse drawn trolley was just behind it to the East also loading from a truck on line 10 and with the horses to the eastern side of the trolley, the first of plaintiff's vehicles involved in the accident was facing west just

1948 (1) SA p233

Ettlinger AJ

beyond the horse drawn trolley, and the other vehicle involved in the accident was next in line to the east.

A number of photographs put in by consent give a fairly accurate impression of the scene after the accident and show the various vehicles after the collision. It is to be remembered, however, that the motor lorry driven by Obed left the yard before the photographs were taken and was replaced for the purposes of the photographs by another lorry, facing East instead of West, and that immediately after the collision and before the photographs were taken the truck and the two vehicles involved in the collision were moved back a small distance in order to extricate the witness Cardozo who was badly injured in the accident. The photographs do, however, give an accurate impression of the area between tracks 10 and 11 and of the types of vehicles involved in the occurrence.

Though a number of eye-witnesses of the accident were called there is in truth little doubt or dispute as to the salient features of the accident. Lorry T.J. 51640 had been loading teff from a truck on line 10. When it was fully loaded with about 70 bales, to a height slightly above the cab, the driver Schwartz started to move off towards the West with the intention of leaving the yard for his employer's premises. Facing him was the trolley with the four horses. There is some dispute as to the exact direction in which the horses were standing but it is admitted that Schwartz veered towards the South in order to pass them. In so doing Schwartz drove his lorry on to track 11, with the front left wheel of his lorry between the rails. From this position it became extremely difficult to extricate the lorry owing to the height of the rail above the ground between the rails...