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4 Luzerne Legal Observer 1 (1864)

handle is hein.statereports/luzleob0004 and id is 1 raw text is: 




Vol. IV.

Scranton, Pa., January 1, 1864.

                      English Reports.

                   PRIVY COUNCIL.
 [Present Lord    CHELMSFORD, Sir J. L. KNIGHT BRUCE,
               and   Sir J. T. COLEBRIDGE.]
                       (From the Jurist.)
                      FAWCETT, Relp.
 Railway Compauy-Negligence-Con-truction of the line-Onus probtandi
    When an injury N, alleged to have arisen from the improper contruction of a rail-
 way. the fact of its ha ilng Liven way viii aniou t to prina lane ei Menoi of it  inoot
 ficiney ; and this evidence way become colclqa  i irm the absiiece of ally proof on
 the part of the cuon any to rebut it.
    A railway cotopany, ilt the fortifiotr o,^ their line, are boned to construct their
 works in soel a n tlln *r IS to be capable of resisting all violri e eo0 weather which, in
 th climate throutgh which the line runs, might be expected, though pet halis rately, to
    in an action against a railway cotmpany t, recover cornpensati n for injuries result-
 ing to a pasenger from an accident cat d by the giving way of a pot ion of the irno-
 pany s railway. it aasproved, on behalf of the c rnpony, that they hid alays enuploy-
 ed skilful vagineerS in the cotnstrizction of their worcs, al that the giving way )f the
 company s railtav was caused by a storm of u ,uiual vilence. The juize in directiig
 thejur ,never expl dred to thein the tffet of such. vhence upon the quiestion of negli
 gence: Held, that the jury ought to have had their minds distinctly and pointedly direc-
 ted ti  this quehii.m.
   These were two appeals from       the judgment of the Court
 of Error and Appeal of Upper Canada. The causes of ac-
 tion in boh eases arose out of an accident which happened
 on the appellant's railway     on ke 19th of Niarch, 1859.-
 In each case the action was brought by a widow as the per-
 sonal representative of the husband, to recover compensa-
 tion for the benefit of herself and children. In the first
 case an action was brought by Jane Fawcett to recover
 compensation fbr the loss sustained by the death of Thom-
 as Fawcett, whiih took place whilst travelling on :he appel-
 lant's railway on the 19th March, 1859, when a part of the
 embankment on which the railway was laid gave way dur-
 ing a violent storm which thent occurred ; the engine of the
 railway train was thrown into the breach thus createcl inthe
 embankment, and Thomas Fawcett was killed. The de-
 ceased was travelling as a passenger for hire, and it was al-
leged by the respondent, that. the accident was attributable
to the appellants having their railway, and the switches,
bridges, embankments. culverts, drains, and gutters thereof
unskilfully and improperly placed, bnilt, and constructed of
insufficient materials and size, and to negligence, and want
of skill and caution, in the carrying and conveying the die-
ceased, and in conlucting, managing and directing the car-
riage in which lie was a passenger, and       the train to which
the carriage wa.; attached, and the locomotive whereby the
train was drawn. The defence was, that there wasno such

breach of duty, or want (f skill and care, on the part of
the appellants, as alleged. The cause was tried at Hamil-
ton on the 31st October, 1859, before Sir J. B. Robinson,
C, J., of Upper Canada. It was admitted ,hat the deceas-
ed. Thomas Fawcett, was a passenger in the train from
Paris (in Canaida) to St. Catharines and was killed by the
accident which happened on the 19th March, 1859, in that
part of his journey which lay between Hamilton and Cope-
town.   It a ;peared by the evidence, that the railway be-
tween Iamilton and Copetown at the place where the acci-
dent happened and for some distance in both directions, is
carried along an embankment raised on and running along
a mountdin side, the mountain on the upper or north side of
the embankment, rising to a height far above the top of the
embankment, the level of which was about twenty-five feet
above the ground on its north side, and about sixty feet
above the ground on its south side. On the morning of
the 19th March. 1'59, at about two o'clock, A. Al., the
train in question, travelling at about ten miles an hour from.
Copetown to Hamilton, reached the place of the accident.
The embankment to within about twelve feet from the
ground on the north side, had previously given way, and
fallen over to the south side, leaving a gap of about forty.
five yards, into which the engine fell and so Fawcett was
killed. Loaded trains had passed safely over the place of
the accident, one within an hour of the time when it took
place, and two o hers within the two or three hours preced-
ing. At those times all appeared safe, and there was noth-
ing to attract attention. The weather had been wet for two
or three days previously, the winter's frost was coming out
of the ground, the night in question was very stormy, and
from six o'clock in the evening of the 18th March there had
been an excessively heavy rain.. The witnesses on both
sides agreed that the rain caused the embankment to give
way, but in what manner it acted was left entirely to con-
jecture and uncertainty. No evidence was given of any
negligence, or want of caution, care, or skill in carrying or
conveying Fawcett, or in conducting, managing, or direct-
ing the carriage train or locomotive, or of defects in the ma-
terials used in the construction of the embankment or rail-
way works ; but the respondent called witnesses for the
purpose of proving negligence or want ot skill in the cor-
struction or maintenance of the works. At the close of the
respondent's case it was objected, on behalf of the appel-
lants, that as the evidence slewed that the appellants em-
ployed competent engineer., the n'g!igenoe charged gai.i

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