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Vol. I.)

Lewis v. The LONDON, CHATHAM, AND DOver Railway Co.

(No. 4.


and threw me back, and my glass went against the back of the carriage and two large sheets of glass were broken. I was not injured. I did not attempt to get out when the train gave me that jerk. 'I stopped till it

I came to a stand again. I heard no one call out, · Keep your seats.''

On cross-examination he said : “ They may have called out, • Keep your seats,' but I did not hear them. I was in the fore part of the train, near the engine, with my back to the engine, up at the fore end of the train underneath the bridge. I was in the fore part of the train as it ran up through Bromley. I put my arm over towards the door, and then the train shunted back and gave me a jerk, and then I stayed till the train went back and came to a stand. I am almost certain I was within three or four carriages of the engine. I cannot say how much I was under the bridge ; I should not call the fore part that part that was going to London. I should call it the back part of the train.

In answer to the judge the witness said: “I know some portion of the train was a long way beyond the station where it used to stay. I was thrown back. I was incumbered with the glass at my back ; after the jerk the train put back.” In answer to a juror the witness said: “I cannot exactly say whether the carriage I was in when I first attempted to get out was under the bridge.”

At the conclusion of the plaintiffs' case the judge stated that, in his opinion, there was no evidence of negligence on the part of the defendants to

go to the jury, and that it was his duty to direct a nonsuit, but the plaintiffs refused to be nonsuited; the judge thereupon directed the verdict to be entered for the defendants.

The question for the consideration of the court was, whether the verdict entered for the defendants ought to be set aside and a new trial ordered.

B. F. Willlams, for the plaintiffs. The defendants were guilty of negligence. The officials called out “ Bromley,” and then the train stopped. The female plaintiff reasonably supposed, under these circumstances, she was to alight. The calling out the name of the station, coupled with the stopping of the train, was an invitation to her to get out of the carriage. Cockle v. London and South Eastern Ry. Co. Law Rep. 7 C. P. 321. While she is acting on the invitation, and is about to get down from the carriage, the train is suddenly shunted back and she is injured. Shunting back the train without notice is an absence of ordinary care in the management of the train, and is negligence for which the defendants are liable.

W. G. Harrison, for the defendants, was not called upon.

BLACKBURN, J. I think it is not necessary to hear the defendants' counsel. The question is, whether (the woman having unquestionably sustained an injury) the judge could say there was evidence on which the jury could reasonably find that there was negligence on the part of the defendants or their servants, which occasioned injury to the plaintiff. The facts appear to be abundantly clear on the female plaintiff's own story: It

appears that the train was coming up to the station, and some official on the platform called out, “ Bromley – Bromley." Calling out the name of the station I understand, and have always understood, to mean this, that it is an intimation to all who are travelling by the train that the station at which the train is about to stop is that particular station. When the ser

Vol. I.)


(No. 4.

vants of the defendants called out “ Bromley,” the train was still going forward, and the train, by one of those accidents that will sometimes occur, overshot the platform, so that, as the plaintiff herself said, the engine went beyond the bridge, and part of the train went under the bridge and passed the platform. Immediately after that there was an order given for the train to come back to the platform, and the train was backed. The female plaintiff had in the mean time proceeded to get out, and in trying to get out, and in consequence of trying to get out at the time the train began to back, a jerk comes, throws her down, causing the injury. The question is, whether there was negligence on the part of the defendants' servants causing her to get out at the time and place she did ? Mr. Williams has argued that if the plaintiff supposed she was to get out at the place at which the train stopped, and was injured, the defendants are liable. I do not think so, unless that supposition was induced by the acts of the company's servants; but the plaintiff could not have supposed that, because she says that she knew the place well; that she saw her carriage was not alongside the platform, but at the edge or the corner of it, and that part of the train was beyond the platform. I see no evidence in this case of an act on the part of the company's servants to induce her or to justify her in alighting at the spot where she was getting out. From all the circumstances she, as a reasonable person, must

have believed that the train, which had passed the platform, would come back again ; that it would not stop under the bridge and let the passengers in the further carriages get out upon the line; and, consequently, she had no business to get out at the place she did unless the company's servants told her to do so. There was, therefore, no evidence from which the jury could have reasonably found negligence. I do not agree with Mr. Williams that calling out the name of a station is an invitation to passengers to alight.

On the contrary, the name of the station is generally called out as the train is passing on. Every person must have heard porters at a railway station call out something, which, if he happens to know the name of the station, he can recognize ; if not, it frequently happens that the passenger cannot make out what name it is that the porters are calling out. Calling out the name of a station is not an invitation to alight. Cockle v. London f South Eastern Ry. Co. Law Rep. 7 C. P. 321, is distinguishable. In that case there was clear evidence that the train had been brought to a final standstill, and that the passengers were to get out at that place, or not at all. I think there was no evidence on which the jury could find for the plaintiffs, and that consequently the judge was right in directing a verdict for the defendants.

QUAIN, J. I am of the same opinion. This is a case manifestly where the female plaintiff had no reasonable ground for believing that the train had finally stopped, so as to entitle her to alight at the particular spot. She says herself that she knew the station very well, and that she had been in the habit of travelling on the line once or twice a week. in the front part of the train. Four carriages in front of her, as well as the engine and tender, had actually shot so far beyond the platform that they were at the other side of the bridge, and her own carriage was close to the end of the platform and well up to the bridge. She knowing the place, when she looked out and saw the position of the train, must have


She was Vol. I.)

Lewis v. THE LONDON, CHATHAM, AND Dover Railway Co.

(No. 4.

seen at once that the train was not in its proper position; and if she had thought for a moment, she must have known that the train would be backed in order to get it into its proper place alongside of the platform. With a knowledge of the station, and without any express invitation to alight, and without having the door opened for her by any porter — only having heard " Bromley," called out — which is done to give notice to the

“ passengers that the train had arrived at that particular station, and that they were to prepare to alight — she gets out. The company had done no act to induce her to believe that the train had arrived at a place where it would stop, so as to justify her in assuming that the company had given her an invitation to alight at that particular spot. I think the verdict was right.

ARCHIBALD, J. I am also of opinion that there was no evidence in this case to go to the jury. No doubt there may be conduct on the part of the company, and the circumstances may be such as to amount to an invitation to get out without the actual opening the door and bidding the passengers to alight. If the train is in its proper place, or if the train is allowed to stand still for a sufficient length of time, there may be, under some circumstances, an intimation at least that the passengers may alight. But the circumstances are entirely different here. The train had reached beyond the platform ; for, according to the evidence, it is clear that a con

; siderable portion of it was beyond the bridge, and the carriage in which the plaintiff herself was travelling was next to the corner of the platform. The slightest attention on her part must have made her aware that, as matters stood, it was dangerous for her to alight. She, knowing the station as she did, must have come to the reasonable conclusion that that was not the place she ought to alight at; that there was something more to be done, and that the train would be pushed back before it was right and proper for her to alight. Being well acquainted with the platform and the station — and the evidence showing that the train did not wait a sufficient time and give her fair intimation that she might alight without danger- she chooses to get out of the carriage. The evidence as to the time the train stopped shows it was only for a few seconds. One of the witnesses states that he had a frame strapped on his back; he had not to wait to put it on; and that when the train stopped he stood up immediately, and then he put his hand on the door; the train shunted back. We may conclude that he was an active man, carrying a burden, and therefore did not lose much time in attempting to get out of the carriage; but he says before he got out of the carriage the train shunted back, so that the female plaintiff must have got out very hastily and in a great hurry, and at a time when there was nothing done on the part of the company, or their servants, that she might have taken to be an intimation or invitation that she might safely get out. Under these circumstances, I think the verdict was right.

Judgment for the defendants. Attorneys for plaintiffs : Martin, Gregory š Boreman. Attorney for defendants: J. C. Church. November 11, 1873.

Vol. 1.)


(No. 5.


[LAW REPORTS, 9 Ex. 54.]





The purchaser of goods which remain in the possession of the vendor subject to the

vendor's lien for unpaid purchase-money cannot maintain an action of trover against a wrong-doer.

ACTION of trover tried in the passage court, Liverpool, on the 8th of November, 1873. The plaintiff, on the 15th of August, bought at an auction two lots of damaged cotton, part of the salvage from a fire, under conditions which, so far as is material, were as follows :

“ 2. All the cotton, as allotted, is to be at purchaser's risk as to fire, theft, disarrangement of lots, or loss in any respect, from the falling of the broker's hammer, and to be taken away before Saturday next, the 16th instant, at four o'clock, P. M. ; and if any should remain after that time, the cotton remaining will be sold without notice, the deposit forfeited, and the loss (if any) to be made good by the defaulter.

" 3 A deposit of £50 per heap and £10 per lot to be paid at the time of sale of each lot, and payment of the balance in cash, less 1} per cent. discount, to be made immediately after at the broker's office, and before delivery of the cotton.”

The plaintiff paid the deposit on the two lots, but did not pay the residue of the purchase money, and left the cotton in the field where the auction had been held.

On the same day he removed one of the lots; but on going on the 18th of August to fetch the other lot, he found that it was gone. It had, in

, fact been taken by the defendant, who was also a purchaser at the sale, by mistake for a lot which had been bought by him, and the plaintiff (whose purchase money was still unpaid) now sued him for the alleged conversion. The learned assessor, on the defendant's application, nonsuited the plaintiff, on the ground that the vendor's lien for unpaid purchase money prevented him from maintaining an action of trover, and gave leave to the plaintiff to move the court of exchequer for a new trial. A rule having been obtained accordingly,

Gully showed cause. In order to maintain this action the plaintiff must have the right to present possession. But the plaintiff has no such right. It is true that the property in the goods passed to him, but the vendor’s lien for unpaid purchase money deprived him of the right to possession, which the vendor retained. Bloxam v. Sanders, 4 B. & C. 941, at p. 948; Milgate v. Kebble, 3 M. & G. 100. The owner, therefore, , could have maintained an action against the defendant, and the plaintiff cannot, for it cannot be that both can sue. Similarly a mortgagee, under a bill of sale of chattels, of which the mortgagor is to remain in VOL. I.


Vol. I.]

LORD v. Price.

(No. 5.

possession until default in payment, cannot maintain trover for them; Bradley v. Copley, 1 C. B. 685; nor a landlord for chattels leased to a tenant. Gordon v. Harper, 7 T. R. 9. The plaintiff's remedy is not in this form of action, but by a special action for injury to his interest in the goods, as in Mears v. London and South Western Řy. Co. 11 C. B. (N.S.) 850; 31 L. J. (C. P.) 220. This course would secure the rights of all parties, but if the plaintiff can recover without paying for the goods, the vendor’s lien will be lost. Possibly also, by now paying or tendering the price, the plaintiff might entitle himself to recover in trover. In any case he is not without remedy, for he may treat the vendor as his trustee, and on giving an indemnity, sue in his name.

Myburgh, in support of the rule. It is true the plaintiff has no right to present possession as against the vendor, but the vendor's right is for his own benefit, and the defendant, who is merely a wrong-doer, cannot take advantage of it.

BRAMWELL, B. I am of opinion that this rule must be discharged, on the ground that the action cannot be maintained without a right of present possession in the plaintiff. Here there is no evidence that the plaintiff had any right of possession ; that right was in the vendor, who was entitled to retain possession of the goods until the balance of the purchase money was paid, and, on non-payment, to resell the goods and recoup himself for any loss sustained on the resale. Therefore, if the goods were tortiously removed (and there is no evidence that the vendor assented to their removal), it is manifest that the vendor could have maintained an action. But it cannot be that two men can be entitled at the same time to maintain an action of trover for the same goods. It is, therefore, abundantly manifest that the vendor could, and that the plaintiff cannot, maintain this action.

Whether, by paying the balance of the price now, or tendering it, the buyer can, either in an action of trover or by a special action on the case, have any remedy at common law in his own name, or whether he is limited to an action in the name of the vendor, it is not necessary now to pronounce. It is sufficient to say that, on the facts shown here, the plaintiff cannot recover.

AMPHLETT, B. I am of the same opinion. I should be sorry to suppose that the plaintiff could have no remedy. No doubt, on paying the balance, he would be entitled to relief, either at law or in equity. But it is sufficient to


here that he has not done those acts which were necessary to entitle him to the possession of the goods, and that he cannot therefore maintain this action.

Rule discharged. Attorneys for plaintiff: Lowndes f Co., Liverpool. Attorney for defendant : Lupton, Liverpool. January 30, 1874.


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