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Tramway Passenger Injury Alleged Negligence of Company—Statutory Duties and Powers—Latent Defect —Liability of Company—Bristol Tramways Act, 1894 (57 d; 58 Vict. ch. 155.

The plaintiff was a passenger on the outside of an uncovered tramway car belonging to the defendants, which was propelled by means of overhead electric traction. The wheel at the head of the trolly arm came away from the electric wire, and the trolly arm was detached from the standard and fell upon the plaintiff’s head. This was due to the fact that the head of the trolly arm did not come off, but caught in the transverse tie, and the momentum of the car pulled the standard out of the socket. It was proved beyond doubt that such an occurrence was extremely rare, and that nobody knew precisely why it happened, and no contrivance had yet been discovered to prevent it. The plaintiff proved that the blow on his head was caused by the fall of a part of the apparatus on the car, and contended that there was prima facie evidence of negligence. The defendants called a number of witnesses, including distinguished experts. Their evidence to the following effect was not substantially shaken: (1) The system adopted was the best and most widely used overhead system of electric traction; (2) the apparatus on this particular car was in perfect order, and there was no patent defect in workmanship; (3) there was no negligence on the part of the driver or the conductor. No rebutting evidence was called. The plaintiff in his statement of claim gave certain particulars of alleged negligence, and the crossexamination of the defendants' witnesses was addressed to establishing these particulars. It was also attempted to shew that the defendants had not made any experiments with a view to protecting the passengers in the event of the trolly arm falling, and this was relied on as negligence. An action was accordingly brought by the plaintiff against the defendants claiming damages in respect of the injuries sustained by him. At the trial of the action before Channel, J., and a special jury at Bristol, the learned Judge in his summing up to the jury said that the plaintiff could only be entitled to recover damages if there was negligence on the part of the defendants in carrying him as a passenger; that the defendants were not insurers; and that they were bound to take every reasonable precaution that could be taken to secure the safety of their passengers, but not as insurers. His Lordship asked the jury, if they thought there was negligence, to tell him what the negligence was that caused the accident. The jury found for the plaintiff with £150 damages, but stated that no one of the alleged acts of negligence of the defendants was established to the satisfaction of the jury. The defendants applied for judgment or a new trial.

Held (dissentiente Farwell, L.J.), that the verdict of the jury shewed that the defendants discharged the burden which rested upon them ; that the only negligence was disproved notwithstanding the plaintiff's prima facie case; that the standard of care required in the case of a carrier of passengers was not so high as the plaintiff contended; that it was sufficient that the carrier should adopt the best known apparatus kept in perfect order and worked without negligence by the servants he employed; and that if the carrier did that he ought not to be responsible for the consequence of an extremely rare and obscure accident which could not in a business sense be prevented by any known means. Application allowed.

| Newberry v. Bristol Tramways and Carriage Company Limited. Ct. of App.: Cozens-Hardy, M.R., Farwell and Hamilton, L.J.J. Dec. 17, 18, and 20, 1912.-Counsel: for the appellants, Clavell Salter, K.C., and T. W. H. Inskip: for the respondent, Foote, K.C., and B. R. Vachell. Solicitors: for the appellants, Stanley, Wasbrough, Doggett and Baker, agents for Stanley, Wasbrough, and Doggett, Bristol; for the respondent, Ford and Ford, agents for Metcalfe and Lefroy, Bristol.]


By Charles G. Loeb, Esq., Counsellor-at-law, of Valois & Loeb, Paris, France.

It is only since the French Revolution that marriage is considered in France as essentially a civil contract. This principle, first established by the Constitution of 1791 in France, has been consecrated ever since by the laws of this Republic, and the Penal Code at this day forbids any minister of any cult to give a marriage benediction to persons who have not previously justified to him that their marriage has been celebrated, by the competent civil officers, that is to say by the mayor of the town or district in which one of the parties has resided for at least one month. With the consent of their parents, a boy may marry after eighteen and a girl after fifteen years. Before the age of twenty-one, however, neither boy nor girl can marry without the consent of his father and mother. In case the parents disagree, the consent of the father suffices. Should the parents be deceased, the grandparents replace them. Children who have attained the age of twenty-one, but have not yet reached thirty, must justify of the consent of their parents. This means that, should the consent not be obtained, it may be dispensed with provided certain formalities prescribed by the Code, called “ sommations respectueuses * have been fulfilled. The person in this condition must serve upon the parents refusing to consent a summons in due form of law calling upon them to agree to the wedding. Should the parents refuse, the marriage may take place nevertheless after thirty days from the service of this paper and will be perfectly valid in spite of the parents’ dissention. After the age of thirty, no consent of the parents is necessary. The essence of the marriage contract in France is the consent of the parties. The marriage must be preceded since the law of 1907 by the publication of bans. These bans are put up on the walls of the city hall of the domicile of the parties ten days previous to the marriage of the parties and the act of marriage is transcribed on the margin of the birth records of each one of the parties in order to avoid bigamy. The Civil Code in France renders valid all marriage in a foreign country between French citizens or between a French citizen and a foreigner, provided this marriage was celebrated in the legal forms in force where the marriage takes place, provided also that the marriage has been preceded by publication of bans, and provided also that all the conditions prescribed by the French Code as to age, consent of parents and publication of bans have been fulfilled. The French law gives to foreigners marrying in France the full benefit and force of their “national law,” that is to say that the legal age for marriage, the consent of their parents and the question of publication of bans at their domicile is left to their national law. The marriage contract in France involves the following obligations:— The parties owe to each other mutually, fidelity, help and assistance; the husband promises to protect his wife and the wife promises to obey her husband (Art. 213, Civil Code France.) The wife must reside with her husband and must follow him wherever he decides to reside; the husband is obliged to receive his wife and to furnish her with all that is necessary according to his condition and to the best of his abilities. Divorce in France.—Divorce was established in France in 1792. The Civil Code of 1804 consecrated the principle of divorce, but by the law of May 8th, 1816, after the downfall of the Napoleonic empire in France, divorce was suppressed. It was only in 1884 that the laws of France re-established marriage dissolution by divorce. Under the Civil Code in force to-day in France, a divorce may be obtained upon either of the following causes:– First, adultery of the wife or of the husband. Second, cruelty, physical injuries or grave insults. Third, condemnation of one of the parties for infamous crime or felony. The tendency of the French Courts is at present towards the facilitating of the dissolution of the marriage contract. The decisions are continually widening the scope of the causes designated as cruelty or grave insults. Law decisions have held that letters containing insulting words from a husband to his wife, or reciprocally, constitutes grave injuries and were sufficient as a basis for a divorce. To abandon the conjugal domicile, to refuse to consummate the marriage or to continue the marriage relations, to use any incorrect familiarities with third parties, to communicate dangerous sickness and many other causes have been held to constitute grave insults and to be sufficient causes for divorce.

Procedure.—Divorces are pronounced by the Civil Court in France. These judgments may be appealed from. The procedure comprises:– First, an attempt to conciliate the parties by the President of the Court. If this does not succeed, and the facts alleged are clearly proven, the divorce judgment is granted de plano, If the facts are contestable and contested, the Court orders an investigation and each one of the parties may call forth witnesses. The divorce may be either pronounced in favour of one of the parties or “a leurs torts reciprogues,” which means by the wrong doings of both. There are two months for appeal after the rendering of the judgment. No appeal being taken, the divorce then becomes absolute, but has no effect or force until it is actually transcribed on the books and registers of the city hall in the margin of the Marriage Act. This last formality is essential. A man may marry immediately after a divorce, but a woman must wait 300 days after the granting of the decree. This law has been made to avoid any question as to the paternity of a child born or conceived during the said period. The French Court, by the judgment of divorce, dissolves absolutely the marriage contract and gives to each of the parties their entire liberty. The Courts may arrange in their judgment all property rights and questions between the parties and have power to grant alimony. The question of the guardianship of the children is also settled in the judgment. Divorces are becoming more and more frequent in France, specially in the largest cities. The Courts are becoming more and more liberal in their interpretation of the laws of divorce and are extending, by interpretation, the scope of the causes prescribed by the Code. The law and the Courts seem to be tending gradually and surely towards the simplest solution for matrimonial dissention: The divorce by mutual consent.—From the Va. Law Reg.

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