Dr. Walter Silvera V. General Manager, Nigerian Railways (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Tort—Negligence—Accident—Plaintiff not exercising reasonable care.

Facts

The case arose out of an accident in the dark at a level crossing. A little higher up the line passed through a cutting which blanketed the sound of whistling; there was tall grass obscuring vision; and instead of electric lights, the engine had a kerosene lamp on it.

A goods train moving slowly down the gradient on its own momentum came upon the plaintiff’s car on the crossing—neither the engine driver nor the fireman saw it—and pushed it down the line for some distance.

The plaintiff sued for damages. The plaintiff had often passed over the crossing. There was a board there with the words “Stop Dangerous Level Crossing”, known to him.

On this occasion it appears that Seeing no Ught he did not stop but moved on slowly in low gear. The trial Judge was of opinion that had the plaintiff stopped, he would have heard the train coming and seen its black form against the sky-Une; the train would have been up to the crossing before he could have reached it, and the accident could have been avoided.

The plaintiff appealed from the judgment in defendant’s favour.

Held

The whistling ought to have been kept up to the crossing as the engine had no Ught visible a reasonable distance away, but the fact remained that it was the appellant’s own failure to take the reasonable care of stopping at what he knew was a dangerous crossing which resulted in the accident.

Appeal dismissed.