BRERETON v. THE GREAT EASTERN RAILWAY.
RAILWAY Accidents are destined to furnish a very curious chapter to the history of English Law. It is difficult to resist the conviction that, in applying the doctrine of liability for negligence, Juries often administer not so much justice, as what they consider to be equity. Into their notion of equity there enters an unconscious, but very real sense of the pecuniary positions of the parties to the action. Where both are wealthy, this consideration counts, of course, for nothing. If damages are awarded to the plaintiff, he gets, indeed, what he does not need ; but then the defendant loses what he does not miss, and so things are pretty well balanced. But in the majority of cases, this equality of conditions does not exist ; at all events, does not exist in the apprehension of a jury. The defendant in the action, the man against whom the charge of negligence is made, is in business, and being in business, he is assumed to be poorer than a man who is not in business. No doubt, the negligence of his servants, or some fault in the materials he has used, or in the method in which he has employed them, has been the cause of the accident. But then it seems hard to hold him responsible for matters over which, though he had control in law, he had little or none in fact, when the result of holding him responsible will be to saddle him with the payment of a large sum of money. Most of the jury, perhaps, are in business themselves, and they know how hardly fortunes are made, and how annoying it is to see the profits of the year go in one lump-payment, with nothing had in return except anxiety and annoyance. So they either disregard the evidence, and declare themselves not satisfied that the accident arose from the defendant's negligence ; or they minimise the injury, and give damages which represent their sense rather of what the defendant can afford to pay, than of what the plaintiff is entitled to receive. Where a Railway Company is concerned, Juries are under quite another set of influences. The business man—hard-working, and with large expenses to meet, even if he has a large income where- with to meet them—has disappeared, and in his stead is a wealthy corporation. Its members, indeed, may be poor in- dividually, but they are rich in the aggregate, and even if they have to pay heavy damages, it will only mean that they will receive a somewhat smaller dividend at the end of the half- year. What is a loss of this fractional kind distributed over many thousand persons, all of whom are unknown to the jury, by the side of the unmistakeable injuries inflicted on the plaintiff, injuries which, for the most part, they can see with their eyes, and appraise with their minds ? A mere nothing. The sense of hardship which in the former case led them to subordinate the injury done to the plaintiff's person to the in- juries to be inflicted on the defendant's pocket, leads them now to reverse the process. What they think of is not so much the precise relation between a particular injury and a par- ticular sum of money, as the fact that an injury has been sustained, and that here is a rich company to which the law allows it to be charged. The temptation in the two cases is precisely the same. In both, sympathy, with all the seductive reasoning it can command, clamours against justice, and not seldom gains the victory.
We do not at all say that this was what happened in the two cases of " Brereton v. The Great Eastern Railway " which have lately been tried. It is impossible to estimate the value of evidence without hearing the witnesses give their testimony, —at all events, without reading it in the minute detail with which it is drawn from their lips by counseL But the facts as they are set out in the newspaper reports certainly suggest that while the compassion of the jury was strongly appealed to by the sad plight of the plaintiffs, they were enabled to indulge it with the less reserve that they knew the damages would come out of the pockets of a railway company. Otherwise, they might have been expected to be more impressed with the singular and exceptional circumstances of the accident. Very often a train is wrecked by reason of some omission or some blunder which leads directly to the catastrophe. A wrong turn is given to the points, a wrong arm is raised or lowered at the signal-post, a carriage which ought to have been con- demned is allowed to go another journey. The moment the thing is done, its certain or possible consequences can be measured. The train will go off the line, or it will come against some obstacle which has been left on the rails in reliance on the warning signal, or the defective axletree or wheel will not hold out. In all these cases, an expert who saw the train start, and knew what had been done or left undone, would feel no surprise at the result. But in the cases which have been before the Court this week, an expert might have seen the train go out of the station, and might have known all that the plaintiff's counsel contended could then be said about it, and yet need not have anticipated any accident. Underneath the engine is a "balance-weight," which is an iron cylinder about sixteen inches long, and weighing three hundred- weight. This balance-weight is connected with the engine by a bolt passing through it, and is fastened by a nut, which when screwed tightly is supposed to keep the weight secure: In this instance the nut became unscrewed, and the balance-weight, having nothing to keep it on its bolt, slipped off. Had it simply fallen between the rails on which the train was running, no harm would have been done. Instead of this, it passed out between the wheels, and was thrown, with all the impetus that a rate of fifty miles an hour could give it, against a train which happened at that moment to be passing in the contrary direction on the other line. In this train the plaintiffs in the two cases were seated, and in the accident thus caused they were both seriously injured. There was no doubt, therefore, that the balance-weight had been the cause of the mischief ; the only question that arose was whether its becoming detached from its engine was an avoidable or an unavoidable accident, or rather whether it was the result of accident or of negligence.
In deciding this issue, two points had to be considered,— first, whether the nut had been properly screwed on; and next, whether any properly screwed nut was a sufficient fastening. The plaintiffs contended that the words " to be rivetted over" had been written on the drawing of the engine, and that this direction was enough to affect the defendants with notice that the maker of the engine did not consider a simple nut a proper way of securing a balance-weight. This part of the case, how- ever, does not seem to have been sustained. The words cer- tainly appear on the drawing, but as it is not customary to use rivets by way of additional security to nuts, no attention seems to have been paid to them. Anyhow, the jury were divided on the point, and it did not affect the verdict. What deter- mined them to give one brother £4,000 damages and the other £6,000 was the belief that the nut had not been properly screwed up. It was admitted by the company that the nut had not been tested before the journey—the explanation being that as it belonged to a fixed part of the engine, it was held sufficient to look at it, and if it appeared firm, it was assumed to be firm. The driver of the engine testified that he had himself examined every nut of importance on the engine, and added that as his own life depended on it, he was not likely to be careless about this part of his work. Against this was to he set the admission of the company's witnesses, that if the nut had not been tightly screwed, the balance- weight might slip off, as, in fact, it did, and that the com- pany suggested no other way in which it could have slipped off. Whether even a tightly-screwed nut might equally have come off does not seem to have been argued, the reason for the omission, perhaps, being that to establish this would have been to show a good reason for using a rivet in addition. In future, Railway Companies will do well to have every part of an engine tested as well as examined before starting on its journey. If this seems an inadequate moral for so prolonged a trial and so large an expenditure, at any rate it is the only one which the facts appear to suggest.
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