Judgment affirmed.[[108]]
KELLY v. METROPOLITAN R. CO.
In the Court of Appeal, April 24, 1895.
Reported in [1895] 1 Queen’s Bench, 944.
Appeal from an order of a judge at chambers affirming an order of a master directing that the plaintiff’s bill of costs should be referred back to be drawn on the county court scale.
The action was brought to recover damages for personal injuries to the plaintiff while a passenger on the defendants’ railway. The statement of claim alleged an agreement by the defendants to carry the plaintiff safely, and a breach of that agreement in negligently and improperly managing the train in which he was, so that it ran into the wall at Baker Street Station, whereby the plaintiff sustained injury. It was admitted by the defendants that the accident occurred by the negligence of the engine-driver in not turning off steam in time to prevent the train running into the dead-end at the station. A sum of 20l. was paid into court, and the jury returned a verdict for the plaintiff for 25l.
When the plaintiff’s costs were taken in to be taxed, the master was of opinion that, on the authority of Taylor v. Manchester, Sheffield, and Lincolnshire Ry. Co., [1895] 1 Q. B. 134, the act of the engine-driver being one of omission, the action was founded on contract, and that therefore the plaintiff was only entitled to costs on the county court scale. On appeal, this decision was affirmed by Day, J.
The plaintiff appealed.
Kemp, Q. C., and Cagney, for the plaintiff, submitted that the action was in fact an action of tort, and was tried as such, and that the plaintiff was entitled to costs on the High Court scale.
Lawson Walton, Q. C., and George Elliott, for the defendants. The duty of the defendants was contractual, and they were bound to take due care not to injure the plaintiff. The act which caused the injury was an omission to turn off steam, and amounted to a nonfeasance. It was not an act of commission or misfeasance, and the defendants were not liable in tort. The distinction is dealt with in the judgment of Lindley, L. J., and A. L. Smith, L. J., in Taylor v. Manchester, Sheffield, and Lincolnshire Ry. Co., [1895] 1 Q. B. 134, and the present case comes within that authority.
[They also cited Foulkes v. Metropolitan District Ry. Co., 4 C. P. D. 267; 5 C. P. D. 157.]