The Elimination of Side-Slip.
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Further Legal Aspects : The Liabilities of Local Authorities.
By C. Parry Williams, Barrister-at-Law.
It will probably not be far wide of the mark to say that, of the many difficulties with which those responsible for the management of motor omnibus companies have to contend at the present time, the problem of how to overcome :;itle-slip is the most serious. The trouble is one which confronts all those who use rubber-tired vehicles, though, in the case of pneumatic tires, it has been greatly minimised by the studded band and other non-skidding devices. Unfortunately, these latter have proved to be quite impracticable in the case of motorbuses, the owners of which are keeping a keen look-out for some really efficient appliance ot the kind. Meanwhile, in " greasy " weather, skidding is a matter of continual recurrence, and not a few of us have had the exciting experience of a trip on a bus, the engine of which seemed to show continually an alarming inquisitiveness as to what was going on in the road behind, resulting in a tortuous and crab-like progression, which, especially if in a crowded street, was to say the least of it—exhilarating!
It is a fundamental rule of law, in cases of damage through accident, that, for the plaintiff to succeed, it lies on him to show that there has been some negligence—a word which has been shortly defined as " absence of care according to the circumstances "on the part of the defendant, and that, where there is no negligence, no action will lie for an injury the result of an accident owing to another's lawful act. The numerous accidents caused by runaway horses furnish common examples of this principle. " For the convenience of mankind in carrying on the affairs of life," said Baron Bramwell in a case of this kind, " people as they go along roads must expect or put up with such mischief as reasonable care on the part of others cannot avoid." Now, it is generally admitted that, whilst a certain amount can be done by the driver to prevent a side-slip, there are many occasions when it is impossible to avoid it. It would seem at first sight, therefore, where injury is caused solely by a vehicle skidding, and without any negligence whatever being imputable to the driver, no legal liability is incurred.
Upon this fundamental rule, however, a further one has been engrafted, which, though apparently introducing a qualification, will be seen, on reflection, to be really only an extension of it. Ii is thatthose undertaking an enterprise involving risk to others must conduct it with a degree of care proportioned to the apparent risk, that is to say, the test of what will constitute negligence becomes a much more severe one. As explained by a high authority, "The law takes notice that certain things are a source of extraordinary risk, and a man who exposes his neighbours to such risks is held, although his act is not of itself wrong
ful, to insure his neighbour against any consequent harm not due to some cause beyond his control." If you keep a tiger in your back yard, and he gets away and returns with a smile on his face, you must take the consequences, although you took every conceivable precaution about chaining him up. Good illustrations of this rule are furnished by cases of fires caused by sparks from locomotives. At Common Law the user of a locomotive on the highway has always been held liable for any damage of which it was the cause. By various Locomotive Acts, the right to use them was fettered by all sorts of restrictions and conditions, whilst it was expressly provided that the old Common Law liability should remain unaffected. It was held that, notwithstanding the fact that all the statutory conditions had been complied with, and quite apart from any question of negligence, the user was liable for any damage he might cause.
In the case of Powell v. Fall (before the Court of Appeal in 188o),, a decision which influenced the learned judge of the Brornpton County Court the other day in finding in favour of the plaintiff, who claimed for injuries caused by a skidding motorbus, some sparks from a traction engine set lire to a haystack. The engine was constructed in conformity with the Locomotives Acts of 1861 and 186;„ and was being driven at a proper pace. There was no negligence. Mr. Justice Mellor, in his judgment in the Court of first instance, said, " It was further contended on the part of the plaintiffs that whilst the Acts entitled the defendant to use a locomotive properly constructed on the public highway, yet it never was intended by the legislature to exempt him from liability to damage in respect of an injury sustained by a third person in consequence of the use by him of a locomotive, and that it was wholly immaterial to the result that such injury arose from no want of care or negligence na the part of the defendant's servants in the management or the use of the same. . . On the part of the defendant it was contended that the effect of the several statutes, being to authorise the use of locomotives on public highways if constructed and managed according to the provisions of such statutes, was to exempt the owners from liability to make good any injury arising from the use of locomotives unless eome improper construction of the engine or some other act of negligence in the use of it could be imputed to such owners or their servants. I am of opinion that the contention on the part of the plaintiff must prevail." This view was upheld in the Court of Appeal, Mr. Justice Bramwell remarking that, " The passing of the engine along the road is confessedly dangerous, inasmuch as sparks cannot be prevented from flying from it . . . it is just and reasonable
that if a person uses a dangerous machine he should pay for mile damage which it occasions. . . . The plaintills are protected Liv the Common Law, and nothing adverse from their right to sue can be drawn from the Statutes."
There is nothing in the Motor Car Acts which takes away the Common Law liability attaching to the user ot a " dangerous machine "; in fact, s. 13, of the Act of 1903, expressly declares that nothing in that Act shall Oleo. any Liability of the driver or owner of a motorcar by virtue (..e any Statute or at Common Law. The motorbus, with its, at present, ineradicable tendency to side-slip, is, therefore, it " confessedly dangerous " machine in the eye of the law, and the owner runs it at his risk.
There is, however, another side to the whole question. Without going deeply into technical reasons for side-slip, it may be said that the chief cause is a dirty or "greasy" condition of the roadway, which cause may be aggravated, more or less, by an excessive camber of the road surface and by the unsuitability of the materials of which it is often constructed. it is common knowledge that many of the roads, on which motorbuses travel, are not only constructed in an unsuitable manner, but are often allowed to remain in a condition highly conducive to skidding. The anti-mot
has an answer ready for any complaint of this sort by the bus proprietor :—" If you can't construct a bus so as to be entirely efficient for use on the roads as you find them, you must give up the idea of running buses." A delightfully simple proposition, which reminds one of the advice given on the advertisement cards of a welt-known firm of spirit merchants : " If you find that drinking whisky interferes with your business—give up your business." In dealing with a case, some 25 years ago, involving the definition of extraordinary traffic, Mr. Justice Field laid down the duty of the road authority with regard to repairing a highway. " We are dealing," he said, " with the expeme of providing highways—highways to be used by everybody for their lawful purpose, and particularly for the transport of goods such as those described in this case. The highway districts are bound to provide the expense by rating themselves. Then, according to what standard are the highways to be repaired? It is clear they ought to be repaired up to the standard of the traffic which the roads will have to bear. The traffic in this district has been increased and the ordinary expense has been raised to the extent stated in the case. The roads must, however, be repaired up to the existing standard of traffic just as much as the roads in Westminster or London must be repaired up to the standard of traffic there." In another case, in the same year, it was held by Lord Lindley that " the duty of highway surveyors is to repair and keep in repair, which means, I apprehend, to keep the road as dedicated to the public in such a state as to be safe and fit for ordinary traffic."
By s. 29 of the Public Health (London) Act, 1891, it is the duty of the sanitary authority to keep streets " properly swept and cleansed as far as is reasonably practicable, and
to collect and remove front the said streets so far as is reasonably practicable all street refuse," and they are liable to a fine, in default, not exceeding L:5o. So much for the duty of the road authority. I f, however, through nonrepair, or the uncleansed condition of the road, an accident happens, the road authority cannot be held responsible, the reason, as stated in law, being that it cannot be made liable for acts of mere " not-feasance." This immunity in the case of injuries through non-feasance—by which may be understood acts of omission (e.g., allowing to get into disrepair) as compared with those of " misfeasance," or commission (such as placing a heap of stones in the roadway to the common danger), injuries resulting, in fact, from a policy of " letting things slide," may be said, shortly, to have arisen in this way. The inhabitants of the county were, formerly, liable for the upkeep of the roads and, as long ago as 1788, it was held that they could not be made liable for injury caused through non-repair; among the several reasons for which decision. were, that to hold otherwise would result in a multiplicity of actions and, to quote from one of the judgments, " it is better that an individual should sustain an injury than that the public should sustain an inconvenience," for if damages were given against the county they would have to be recoverable against one or two individuals who would have no means of reimbursing themselves except by bringing separate actions against each individual for his proportion, and, therefore, it was better that the plaintiff should be without a remedy. It has been settled, by numerous decisions since that time, that notwithstanding the transfer of the liability to maintain the roads to local authorities or other corporate bodies, by Statute, and, in spite of the fact that a penalty is imposed for failure to perform that duty, the same principle will hold good, they merely, as it were, stepping into the shoes of the" inhabitants of the county," and that nothing short of express enactment to that effect will reader them liable for " non-feasance."
Should the body in question, however, besides being the highway authority, be also constituted some other authority, the position is different and it may be liable for a negligent act of non-feasance whilst acting in the latter capacity. Thus, it was held that, where a vestry, in its capacity of street watering authority, had allowed an iron flap, which it had put down, to become smooth and dangerous by wear resulting in injury, it was liable in an action for damages.
Some of the bolder spirits of the times, with a truly radical want of veneration for " things ancient," have dared to criticise the soundness of this principle of immunity, from the point of view of the public welfare, and have hinted that " if things were different they might be otherwise." If an alteration came to be made in the law in this respect, we should no doubt hear highway surveyors voicing much the same complaint as that of the " members of the force " in "The Pirates of Penzance." But—motorbuses might have ceased to skid !