Union Government (Minister of Railways) v Sykes

• Jurisdiction: South Africa
• Judge: Lord De Villiers CJ, Innes J, Solomon J, CG Maasdorp JP and De Villiers JP
• Judgment Date: 28 April 1913
• Citation: 1913 AD 156
• Hearing Date: 10 March 1913
• Court: Appellate Division

Lord De Villiers, C.J.:

The action out of which this appear arises was brought in the Johannesburg Resident Magistrate's Court for damages sustained by the plaintiff by reason of the grass on his land having been destroyed by fire through the alleged negligence of the defendant or his agents. The summons alleged that sparks from the funnel of an engine drawing a goods train, and used by the defendant on the railway line, set fire to the grass. This allegation was denied in the plea of the defendant, who further specially pleaded that the engine was fitted with a modern spark arrester in good order, and that if the fire was caused by a spark from the engine, then the damage was due to the plaintiff's own negligence in refusing permission to the defendant to burn the usual fire-path along the railway line. This latter plea was practically abandoned on appeal. The magistrate found as facts that the engine was suitable for its work, and that there was nothing negligent in using it for drawing a goods train as was done, that the engine was in good order, that the spark arrester used was of a reasonably good type, and that it "was in order at the beginning of the run at Germiston," a distance, according to the official railway time-table, of about ten miles from the part of the line where the sparks were emitted. The spark arrester was again examined at Kroonstad, a distance of 116 miles further on, but inasmuch as the fireman who made the examination was not called by the defendant as a witness, the magistrate found that it is possible that the wings of the arrester may have fallen down and prevented the proper working of the spark arrester. He held that the burden of proving that the arrester was in order lay upon the defendant, and that things must have gone wrong with a cause, it was for the defendant to explain the cause, and to show that it was due to something which could not have been reasonably provided against. Judgment

was accordingly given for the plaintiff. An appeal to the Transvaal Provincial Division was dismissed on the ground that the defendant had not discharged the onus of proving that the spark arrester was in order when the sparks doing the damage were emitted. The court further held that there were two other facts which afford some positive proof of negligence - namely, that one of the native witnesses saw fire coming from the funnel, which would indicate considerable flaring, as it was broad daylight at the time, and that the spark must have travelled at least 126 feet, according to the evidence, before it set fire to the

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grass. It is common cause that under our law culpa or negligence must be the foundation of an action like the present. It is true that in the case of Eastern Districts Telegraph Co v Cape Town Tramway Co (1902, L.R., A.C. 381), Lord ROBERTSON, on behalf of the Judicial Committee, expressed the opinion that the doctrine laid down in the English case of Fletcher v Rylands (L.R. 3, E and I. A.C. 330), is applicable in Roman-Dutch jurisprudence, but this was a dictum not necessary for the decision of the case. If there was no negligence whatever on the part of the defendant in that case - as to which the report is not quite clear - there seems to me to be no authority whatever in our law for applying the doctrine there laid down to the present case. The decision of the House of Lords in Glasgow, etc., Co v Caledonian Railway Co. (30 Scottish L.R., p. 587) seems to me to be more in accordance with our law. That was a case of damage done by sparks from the defendant company's locomotive, and the decision is that of a specially strong court. Lord Chancellor HERSCHELL said: "It must be taken for the purpose of discussing this matter in your Lordships' House, that the injury and damage to the pursuers was the result of a spark from one of the defenders' engines. It is now well-settled law that in order to establish a case of liability against a railway under such circumstances it is essential for the pursuers to establish negligence. The railway company having the statutory power of running along the line with locomotive engines, which in the course of their running are apt to discharge sparks, no liability rests upon the company merely because of sparks emitted by an engine having set fire to an adjoining property. But the defenders, although possessing this statutory power, are undoubtedly bound to exercise it reasonably and properly, and the test whether they exercise this power reasonably and properly appears to he this. They are aware that locomotive engines moving along the line are apt to emit sparks. Knowing this, they are bound to use the best practicable means, according to the then state of knowledge, to avoid the emission of sparks which may be dangerous to adjoining property, and if they, knowing that the engines are liable thus to discharge sparks, do not adopt that reasonable precaution they are guilty of negligence, and cannot defend themselves by relying on their statutory power. . . . The question therefore resolves itself into one of fact. Have the pursuers, upon

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whom, in my opinion the onus lay, and always must lie where liability can only be shown by the establishment of negligence on the part of the defenders, made out a case of negligence?"

The judgment was concurred in by Lords WATSON, ASHBOURNE, MACNAUGHTEN and FIELD. Lord ASHBOURNE added a few words of his own, in the course of which he said: "I agree with Lord M'LAREN, who, in the course of his well considered judgment said: 'The Legislature by authorising the use of steam power without limitation as to the power of the engines or the speed of locomotion, has impliedly indemnified the company against the consequences of the use of such engines, provided they are of the beat construction, and the proper safeguards are used for minimising the risk of fire damage.'" In the present case also the defendant had legislative authority to use steam power without limitation as to the power of the engines and the speed of locomotion. The 3rd section of Transvaal Act 13 of 1908 enacts that: "The Administration may use upon the railways locomotives or other engines propelled by steam or other motive power and rolling stock to be drawn or propelled thereby." The fourth section leaves it to the Administration to make regulations as to the mode in which, and speed at which trains are to be propelled or moved.

Now, I quite agree that the defendant is bound to use the best practicable means to avoid the emission of sparks, but until means have been invented to prevent such emission altogether I am not prepared to hold that the bare fact of a fire having been caused by sparks from an engine constitutes sufficient prima facie proof of negligence. In an action for damages the plaintiff would, of course, be able to enforce the production of evidence as to the type of engine which caused the fire, but if the effect of such evidence is to show that no fault can be found with the engine, the plaintiff cannot succeed without other proof of negligence. The magistrate found that the spark arrester used for the engine now in question was of a reasonably good type, and the Provincial Division does not appear to have dissented from this view. The engine was examined by the engine driver at Germiston, and the spark arrester was then found to be in good order, but the court below held that it may have got out of order before reaching the plaintiff's property, and that as it was not proved to have been then still in good order, the onus lying on the defendant had not been discharged.

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It appears to me, however, that the engine driver cannot be expected to examine the spark arrester at short intervals. If the distance between the plaintiff's farm and Germiston had been such as to make it reasonable that there should be an inspection in the interval, it might fairly have been contended that the non-inspection after the train left Germiston was a proof of negligence. Great importance is attached by the Court below to the fact that the fireman who examined the spark arrester at Kroonstad was not called as a witness, but even if be had been called, and had stated that the arrester was not in order at Kroonstad such statement would have been by no means conclusive against the defendant. The engine driver stated in his evidence that his fireman examined the engine at Kroonstad, and that if there was anything wrong the fireman would report to him. The engine driver was not asked in cross-examination as to the nature of the report, nor as to the reason of the fireman not being produced as a witness. The defendant seems to have attached little importance to the question as to the condition of the engine at Kroonstad, and I am not prepared to assume that the fireman was not called because his evidence would be, adverse to the defendant. The defendant having used the best practicable means to prevent the emission of sparks and there being, in my, opinion, no valid reason for supposing that the spark arrester was out of order when the sparks causing the fire were emitted, he ought not to have been held liable in this action.

In regard to the two facts which are said to afford some proof of negligence, it is true that the plaintiff's witness, Stiena, did state that she saw fire come from the funnel, but the interpretation may have been faulty, because soon afterwards the witness had to be put back until a proper interpreter could be obtained. In cross-examination by the aid of the proper interpreter, the witness merely said that she "saw the sparks coming out of the mouth of the funnel of the engine, and that sparks came and fell on the left-hand side of the line."

As to the second additional fact relied upon as proving negligence, Stiena said that the fire started about sixty feet from the train. After a proper interpreter had been...