Railway Accidents: Legal Starting Points
At the time when railways were invented, liability for harm caused in traffic accidents was based on fault. If a stagecoach overturned and injured a passenger, the passenger had to show that the coach driver had been careless or that the coach owner had not kept the coach properly repaired or that he knew the horses were likely to bolt.
But it was necessary to distinguish four problems:
- Damage to goods: Where a stagecoach carried goods, the carrier was bound under the contract of carriage to keep them safe and deliver them to the addressee. If he did not do so, he would be liable, unless he showed that he was not his fault that the goods were damaged or lost. In this way it was the reverse of the normal burden of proving fault. The reason for this very old rule is that the carrier is entirely in control of the goods and is the person who knows (or should know) what happened to them.
- Injury to passengers: Where a passenger was carried for a fare, the carrier had a contractual duty to show care towards the passenger. So he would be liable for fault, if the passenger was injured. For example, in 1863 where horse-drawn buses of competing companies raced each other in London in order to be the first to pick up passengers at the next stop, a passenger who was thrown off the bus was able recover damages for his injuries from the bus company.
- Injury to employees: If an employee of the coach owner, for example the footman, was injured because of the way in which the coach was being driven, the law was reluctant to find the coach owner liable. In some legal systems, such as English law, the view was taken that the employee accepted the risk of being injured by fellow employees as the downside of being part of a common employment. In other legal systems, such as German law, the employer was able to escape liability by showing that he had been careful in selecting and supervising an employee.
- Injury to passers-by: Where a passer-by was injured, he would have to show that the coach driver was at fault. But, of course, the coach driver would usually not have any money. So, in legal systems where the employer is liable for the wrongs of his employee (e.g. England with the doctrine of “vicarious liability”) the passer-by would have to sue the employer.
Once the railway engine was invented, the question was whether this set of rules of liability was going to be adequate.
