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Decisions of the Superior Courts of New South Wales, 1788-1899

Crabb v Booth [1835] NSWSupC 33

personal injury - road accident - Parramatta - contributory negligence - negligence - common carriers - volenti - vicarious liability - Dowling J., opposed by Sydney Herald - Forbes C.J., opposed by Sydney Herald

Supreme Court of New South Wales

Dowling J., 17 March 1835

Source: Sydney Herald, 19 March 1835[ 1]

Tuesday. - Crabb v. Booth and others. - This was an action brought by plaintiff who resides in Sydney, against the defendants, proprietors of the Windsor coach, to recover a compensation in damages for injuries sustained by the plaintiff, in consequence of the upsetting of the said coach, in which he went as a passenger for the purpose of proceeding to Windsor, on the 19th July last.  The declaration contained three counts; the first count set forth, that in consideration of a certain sum paid by the plaintiff to the said defendants as coach proprietors, he became an outside passenger in their coach, and it therefore became them to use proper care and diligence in conducting of the said coach, which they neglected to do, and suffered the driver to abandon his duty; in consequence of which it was overturned and plaintiff broke his leg; a second count charged the neglect generally; a third count attributed the accident to the overloading of the coach.

Defendants pleaded the general issue.

It appeared that plaintiff, with several other persons, proceeded on the day set forth in the declaration, at about 4 o'clock, in the coach of defendants and when near the public house on the Parramatta road called the ``Donnybrook" they met with Dargin's coach which had met with an accident and could not proceed, in consequence of Mr. Dargin, the driver, having been thrown off, and rendered incapable of driving; the passengers seemed much agitated and anxious to proceeed.  Some of the passengers of defendant's coach told the driver he had better take the coach in, when he immediately addressed the guard, saying, you are a young man whom the proprietors wish to learn to drive, so take the b--y reins and be d--d, at the same time remarking ``keep the middle of the road and there is no fear," he then left the coach in which plaintiff was, and took charge of Dargin's coach; no one made any objection.  The cause of these expressions was stated to be a feeling which had been excited in the breast of the driver towards the guard, in consequence of his having been informed that it was the intention of the proprietors to supersede him as soon as the guard was competent to take his place.  On his abandoning the coach plaintiff asked the guard if he was used to driving, when he said he was not, having never had the reins more than three times in his life, and that at day light.  A Mr. Hale of Windsor, who was an inside passenger from Sydney, but who, from the time they met Dargin's coach had taken an outside place, sat beside the guard on the box, and offered him his assistance on his making some objections as to his incompetency.  On reaching the Donnybrook the guard refused to go further still urging his incompetency, when the plaintiff said I will chance it, or we will chance it; in consequence of which he again took the reins; some time was delayed in changing horses, and a shower of rain coming on it was rendered darker than it otherwise would have been; the sun had not long set, and it was not quite dark; it was not usual to light the lamps before the coach reached Parramatta, unless in hazy weather when they were lit at the Donnybrook; on this occasion it was considered that the coach could reach Parramatta before dark, which was distant about three miles and a half; it had not proceeded however more than 100 yards when it overturned in consequence of the fore wheel going into a water rut about a foot deep at the side of the road.  The coach was heavily laden but could have carried one or two more; there were about eighteen or nineteen; the complement is twenty, including the coachman and guard; the coach was much damaged.  Plaintiff received a fracture of the tybis, and another man received some injuries which led to his death, being accelerated by his imprudence or getting intoxicated which produced inflammation.  Plaintiff while lying on the ground addressing the guard, is alleged to have said, I am sorry for you young man, but I will tell your Proprietors there is no blame attributable to you, it was our own faults in allowing you to drive when it became dark.  On the part of the plaintiff this is denied, as also the alleged concurrence of the passengers to the substitution of the guard for the regular coachman who is since dead.  The words spoken by the plaintiff are alleged to be ``young man, you have ruined yourself as well as injured me."  Plaintiff lay a month at Parramatta, and was attended by Mr. Surgeon Rutter, the expenses of which together with his board, lodging, and attendance, were defrayed by the defendants, amounting to £14.  Not wishing to incur legal proceedings with which they were threatened by plaintiff, they offered him £20 as a compensation for his lose of time, which he refused, and now brought his action.

It was contended on the part of the plaintiff, on the principle that a master was liable for the act of his servant, that they had not used that due diligence for the prevention of accidents which they ought to have done in employing a person who seized the first pretext for abandoning his coach, which had led to the accident; and also for neglecting to furnish the necessary lights to warn them of the dangers of the road.

On the part of the defendants it was contended, that as the substitution of the unskilful driver was at the request and with the consent of the passengers, the defendants were relieved of their liability, under the principle of law which had been laid down.

The body of evidence went to shew that the passengers did consent or rather urged no opposition to the substitution.

His Honor Mr. Justice Dowling,[2 ] in putting the case to the Jury, informed them, that coach proprietors were bound by law to provide for such contingencies or accidents as might be anticipated, by employing good, sound, and substantial coaches, well-trained horses and careful and attentive drivers, in order that the lives of the King's subjects might not be put in jeopardy.  If any accident occurred through negligence, in not attending to what was thus required by law, the parties were liable for the consequences; while, therefore, a coach proprietor is bound to use all human deligence and forethought for the preservation of his passengers, the law holds him harmless in case of inevitable accidents against which human forethought cannot provide; unlike a common carrier, who is liable for every contingency, robbery on the road and so forth; but he is bound to shew that he has done  all that could possibly be done to guard against danger.  Have they done so? was due care taken that such lights should be provided as would have directed their attention to such dangers as presented themselves on the road? they had been told that it was not usual to light lamps until the coach arrived at Parramatta; but he would tell them, if the coach was at a distance of ten miles from Paramatta, and lights became necessary, it was the duty of the defendants to provide them.  Have they done so?  That was a matter for their consideration. - The Jury returned a verdict for the defendants.

 

In banco, 31 March 1835

Source: Sydney Herald, 2 April 1835[ 3]

 

Crabbe v. Booth. - In this case, which was an action for damages for injury received by the plaintiff, from the upsetting of a coach, and in which a verdict had been returned for the defendant, Mr. Wentworth moved that the verdict was against evidence, that it was expressly contrary to the law, and against the direction of the Learned Judge who tried the case.  After a lengthy argument by counsel the Court expressed its opinion that a new trial should be granted on the above grounds, as justice had not been done.  New Trial granted.

 

Notes

[1 ] See also Australian, 20 March 1835.  On its editorial of 26 March 1835, the Sydney Herald, quoted Dowling J. as saying in this case ``I'll lay aside his being a prisoner of the crown, for God forbid I should allow that circumstance to have weight in the degree of credit to be given to his testimony; he may probably have come out through misfortunes."  It then continued in a heavily satirical fashion, stating that doubly convicted people must be doubly unfortunate.  The Herald's opposition to the liberality of Forbes C.J. and Dowling J. was becoming apparent.

[2 ] The Australian, 20 March 1835: ``His Honor in summing up said that coach proprietors were bound to provide for all contingencies by using every means to render their coaches safe conveyances: if accidents occurred through negligence they were liable by law; where no misconduct or negligence could be shewn, they were to be held harmless; the question was, had they used all precaution?  The Jury were told that it was not usual to light the lamps before the coach arrived at Parramatta - but this was nothing; whenever lights became necessary they were bound to light them.  Had this been done?  This was for them to determine."

[3 ] See also Australian, 3 April 1835, reporting that a new trial was granted ``on the grounds, that the jury had returned a verdict contrary to the evidence, and at variance with the direction of the judge."

Published by the Division of Law, Macquarie University