$2$

After Davies, the law of negligence remained more or less the same for the next seventy years.

Then in $1916$ an accident in British Columbia between a train and a horse$-$drawn wagon presented

yet another twist on last clear chance. The case was brought by Loach, who was the administrator

of the estate of Benjamin Sands, who was killed by a train belonging to the British Columbia

Electric Railway Co$.,$ Ltd$.$ Loach won a judgment against the railroad in the trial court. The railroad

appealed that judgment to the House of Lords in London, which was the court of last resort in the

British Empire, on the grounds that the court below had misapplied the contributory negligence and

last$-$clear$-$chance rules. Here is an excerpt from Lord Sumner$$s opinion:

British Columbia Electric Railway Co$.,$ Ltd$.$ v$.$ Loach

$[1916]1$ A$.$C$.7191$

LORD SUMNER. This is an appeal from a judgment of the Court of Appeal of

British Columbia in favour of the administrator of the estate of Benjamin Sands,

who was run down at a level crossing by a car of the appellant railway company

and was killed. One Hall took Sands with him in a cart, and they drove together

on the level crossing and neither heard nor saw the approaching car till they were

close to the rails and the car was nearly on them. There was plenty of light, and

there was no other traffic about. The verdict, though rather curiously expressed,

clearly finds Sands guilty of negligence in not looking to see that the road was

clear $...$ Hall, who escaped, said that they went $$right on to the track,$$ when he

heard Sands, who was sitting on his left, say $$Oh$,$ and looking up saw the car

about $50$ yards off. He says he could then do nothing, and with a loaded waggon

$[$sic$]$ and horses going two to three miles an hour he probably could not. It does

not seem to have been suggested that Sands could have done any good by trying

to jump off the cart and clear the rails. The car knocked cart, horses, and men over,

and ran some distance beyond the crossing before it could be stopped. It

approached the crossing at from thirty$-$five to forty$-$five miles an hour. The driver

saw the horses as they came into view from behind a shed at the crossing of the

road and the railway, when they would be $10$ ft$.$ or $12$ ft$.$ from the nearest rail,

and he at once applied his brake. He was then $400$ ft$.$ from the crossing. If the

brake had been in good order it should have stopped the car in $300$ ft$.$ Apart from

the fact that the car did not stop in time, but overran the crossing, there was

evidence for the jury that the brake was defective and inefficient and that the car had

come out in the morning with the brake in that condition. The jury found that the

car was approaching at an excessive speed and should have been brought under

complete control, and although they gave as their reason for saying so the

presence of possible passengers at the station by the crossing, and not the

possibility of vehicles being on the road, there can be no mistake in the matter

and their finding stands $...$

Clearly if the deceased had not got on to the line he would have suffered no

harm, in spite of the excessive speed and the defective brake, and if he had kept

his eyes about him he would have perceived the approach of the car, and would

have kept out of mischief. If the matter stopped there, his administrator$$s action

must have failed, for he would certainly have been guilty of contributory

negligence. He would have owed his death to his own fault, and whether his

negligence was the sole cause or the cause jointly with the railway company$$s

$1$This is the correct citation form for some English cases. It is identical to that we have been using, save for the fact that

the year appears first, not last, and in brackets rather than parentheses. $$A$.$C$.$ stands for $$Appeals Cases.$$

$3$

negligence would not have mattered $...$ If the jury accepted the facts above

stated, as certainly they well might do$,$ there was no further negligence on the part

of Sands after he looked up and saw the car, and there was then nothing that he

could do$.$ There he was in a position of extreme peril and by his own fault, but

after that he was guilty of no fresh fault. The driver of the car, however, had seen

the horses some perceptible time earlier, had duly applied his brakes, and if they

had been effective, he could, as the jury found, have pulled up in time. Indeed, he

would have had $100$ ft$.$ to spare. If the car was $150$ ft$.$ off when Sands looked up

and said $$Oh$,$ then each had the other in view for $50$ ft$.$ before the car reached

the point at which it should have stopped. It was the motorman$$s duty, on seeing

the peril of Sands, to make a reasonable use of his brakes in order to avoid

injuring him, although it was by his own negligence that Sands was in danger.

Apparently he did his best as things then were, but partly the bad brake and partly

the excessive speed, for both of which the appellants were responsible, prevented

him from stopping, as he could otherwise have done.