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Pleas, where the plaintiff had been knocked down by a train as he was crossing the line at a level crossing, there was a dispute as to negligence on his part, but as he had recovered a verdict, and the judge who tried the case approved of it, the court refused to grant a rule to disturb it. (Vyse v. The Great Western Railwoy Company).
In an action against railway carriers for the loss of jewellery,for what they would not, under the Carriers' Act be liable, unless the loss was owing to felony by their servants some evidence was given at the trial with a view to show that this had been the case, and so the jury found, but the court granted a rule to set aside the verdict, on the ground that in their opinion, there was “no evidence”-i.e., no sufficient evidence (for so the phrase is now understood) of felony by the company's servants. (Vaughan v.London and North Western Railway Company). One
can scarcely conceive of a question more peculiarly fitted for a jury ; but, as it is, some day next Term the court will have to consider whether it was more probable that the jewellery was stolen by the railway servants or by any one else, and to consider this upon mere written notes of the evidence ! And, if they do not happen to concur with the jury in their judgment of the evidence, they will set aside the verdict, and send the parties to a new trial. And a year or so hence there may be a similar motion after another trial, and so on until the poor plaintiff is ruined. And yet, on all occasions, the judges and the counsel will be ready to extol the superiority of trial by jury, more especially for the trial of such classes of cases. The anomaly will appear all the greater when it is borne in mind that if the railway servants had been indicted for the felony, the verdict of guilty could not have been set aside.
Again, the same anomaly is exhibited in actions for injuries by negligence. A poor factory girl had been fearfully injured by being caught in the gearing of the loom at which she worked, and which, in defiance of the Factory Act, was not properly fenced.
The jury, which included, it happened
two mill-owners, expressly found, in answer to the judge, that she had not helped to bring about the accident by her own negligence, with a knowledge of the risk she was incurring, and they found in her favour, with very moderate damages. Nevertheless the judge directed a verdict to be entered against her, apparently on that possible doctrine of law, as absurd as it is inhuman, into which our judges have been betrayed by false theories, that the person entering into employment must be presumed to have entered into an implied contract to bear all its risks, and among these the risk of being maimed or mangled by the gross negligence of others! The court granted a rule to question the application of this dreadful doctrine to the particular case, but it is to be feared that it is too firmly established to be destroyed, and it is astonishing it does not occur to the judges that it ought surely to be confined to accidents inevitable in their nature, and ought not to extend to injuries caused by negligence or misfeance.
The judges assume the functions of juries, not only in cases tried in the superior courts with juries, but even in cases coming from the County Courts. Thus even in the smallest cases, the suitors suffer all the delay, and expense, and uncertainty of double trial of the facts. Thus in a case of injury to a railway passenger in getting out of a carriage, the question being whose falt it was, one peculiarly for a jury, when the County Court judge has, whether at the assent of the parties, or by way of a nonsuit, decided it, still the Superior Court allowed an appeal, on the subtle pretence that the question is whether there was any evidence, though, of course, that itself depends entirely on the effect of the facts, a pure question of fact. (Lewis v. The London and Dover Railway Company, Queen's Bench). So where a question arose on a ticket limiting the liability of a railway company as common carriers of goods, the question was whether there had been wilful misconduct, peculiarly a question for the jury, and which the County Court judge had most property left to the jury, the evidence being that the railway servants
had unloaded in breach of their duty at the wrong place, just to save themselves trouble, and that this led to the injury, and the jury having most properly found for the plaintiff, the court reversed the verdict (Blackburn, Quain, and Archibald) on the ground that wilful misconduct meant not only a wilful act of misconduct, done with the knowledge that it would cause the damage to the goods. (Glenister v. The Great Western Railway Company, Queen's Bench.) Surely the County Court judge and jury took the sounder view.
Much of the business of the courts consisted of cases of this kind. Thus, during last Term, in the Court of Exchequer, several cases were reported in one day of rules for new trials in accident cases. One was a case in which a child got on a railway and was passing at a crossing, where there was no gate, and was knocked down and had its foot cut off; another was a case in which an omnibus ran against a gig, and the third was a case in which a passenger, getting out of a train at a station, was thrown down and injured, in consequence of the train moving on. All these were cases peculiarly fitted for juries, on account of the conflict of testimony, and the jurors being far better fitted than lawyers to form a judgment as to negligence. Another class of cases in which much time was taken up in motions for new trials, are trumpery cases of breach of promise of marriage or seduction, of which several were moved last Term. Thus, there was a case tried before Baron Cleasby, in which the verdict was only for £25, and yet there was an application for a new trial, and a rule Nisi on the question of corroborative evidence. So, in a seduction case, tried before the same learned Baron, verdict £40, there was an application for a new trial on the ground that there was not sufficient evidence that the girl was in the "service " of her parents at the time, a question peculiarly for the jury.
Most of the cases in which rules were granted were only following out the application of known rules of law; as, for instance, the rule as to the law of carriers that the party signing a ticket is bound by its terms. Thus in a case in
the Exchequer, where the drover who took some cattle to the railway station, was told by a porter to put his mark to a paper, which he did, and he said that he knew he
was signing for the cattle,” but he knew no more about it, not having read what he signed ;-the judge held that the plaintiff, the owner of the cattle, was bound by the terms of the ticket, and directed a non-suit. The Court granted a rule nisi to set the nonsuit aside, on the ground that there was no evidence that the drover had signed any contract at all, or, at all events, none that was binding on the plaintiff. (Phepps v. the Great Western Railway Company.) If the rule is made absolute, there must be a new trial; and the two trials will probably cost double the value of the cows, and will have taken up a year and a half, and yet the facts do not appear to have been in dispute, and the case could have been placed on half a sheet of note paper and decided in an hour by any competent lawyer.
But it is only in a few cases in the Court of Common Law that points of law are determined, either in refusing rules, or in decision after argument. Rules for new trials for misdirection as on points of law are rarely refused, and never if the point is really argurable ; therefore after a rule nisi is refused, it may be assumed that the point is clear, and though it may be made, is utterly untenable. Thus in the Common Pleas, last Term, the point was raised whether, an answer to an advertisement for tenders containing an offer to supply goods at a price, and its acceptance, followed by an order, constituted a contract. The plaintiffs issued such an advertisement; the defendant answered it by an offer, the plaintiff accepted the offer, and ordered a supply on the terms tendered ; but the defendant failed to carry it out, and his defence was, that the contract was unilateral; there being no obligation on the plaintiffs, who had accepted the tender, to order any goods under it. The court took time to consider it, and then rejected the objection and refused a rule. Such tenders, they said, are of daily occurrence, and on an order being sent by the plaintiffs in pursuance of the
acceptance, a contract arose. The court abstained from deciding whether before an order the tender or offer could have been withdrawn, probably it could, as a contract was not created until an actual order on the terms offered and . accepted. (The Great Northern Company Witham.)
In another case a novel question was raised. It was an action arising out of an agreement between the subscribers to charities to exchange their votes. The plaintiff agreed to give the defendant his votes at an election in consideration of an equal number of votes to be put at his disposal on another occasion. In consequence of the non-performance of this bargain he had subscribed to the charity a sufficient sum to obtain the required number of votes, and for recovery of this sum he sued. The question was reserved whether the agreement was valid, and the court seemed to entertain great doubts about it, because, as the judges observed, surely it was the duty of the subscribers to give their votes with reference to the real merits or necessities of the candidates, which, however, it was urged was practically impossible. The court granted a rule nisi, only they said that the case might be discussed, as it was late in the Term when they reserved their judgment (Bolton v. Madden.)
Another case raised illustrated the law of contract. The action was by a shipowner against charterers for delay in loading. The charter, as usual, allowed a certain number of “work days " for loading, but in consequence of the roughness of the weather, it was impossible to load within that number, and the charterer applied to the captain for an extension of the time, and he, on behalf of the owners, agreed to allow it, and within that time the vessel was loaded. Nevertheless, the shipowners sued for damages for the detention during the additional time, and recovered £450. The question was reserved, however, whether “working days," did not mean days, on which it was possible to work, and whether the second agreement was valid. These points counsel for the charterer moved, as well as on the ground that the verdict was against evidence ; but he moved in vain,