Vous êtes sur la page 1sur 3

28/07/2013

Delivery | Westlaw India

Page1

*95 Regina v John Swindall and James Osborne 1 January 1846 (1846) 2 Carrington and Kirwan 230 175 E.R. 95 1846 [230] Before Lord Chief Baron Pollock. March 23rd, 1846. (If each of two persons be driving a cart at a dangerous and furious rate, and they be inciting each other to drive at a dangerous and furious rate along a turnpike road, and one of the carts run over a man and kill him, each of the two persons is guilty of manslaughter, and it is no ground of defence, that the death was partly caused by the negligence of the deceased himself, or that he was either deaf or drunk at the time. Generally, it may be laid down, that, where one by his negligence has contributed to the death of another, he is guilty of manslaughter.) [S. C. 2 Cox, C. C. 141. Referred to, R. v. Dant , 1865, Le. & Ca. 567.] Manslaughter.—The prisoners were indicted for the manslaughter of one James Durose. The second count of the indictment charged the prisoners with inciting each other to drive their carts and horses at a furious and dangerous rate along a public road, and with driving their carts and horses over the deceased at such furious and *96 dangerous rate, and thereby killing him. The third count charged Swindall with driving his cart over the deceased, and Osborne with being present, aiding and assisting. The fourth count charged Osborne with driving his cart over the deceased, and Swindall with being present, aiding and assisting. Upon the evidence, it appeared that the prisoners were each driving a cart and horse, on the evening of the 12th of August, 1845. The first time they were seen that evening was at Draycott toll-gate, two miles and a half from the place where the deceased was run over. Swindall there paid the toll, not only for that night, but also for having passed with Osborne through the same gate a day or two before. They then appeared to be intoxicated. The next place at which they were seen was Tean Bridge, over which they passed at a gallop, the one cart close behind the other. A person there told them to mind their driving: this was 990 yards from the place where the deceased was killed. The next place where they were seen was forty-seven yards beyond the place where the deceased was killed. The carts were then going at a quick trot, one closely following the other. At a turnpike-gate a quarter of a mile from the place where the deceased was killed, [231] Swindall, who appeared all along to have been driving the first cart, told the toll-gate keeper, “We have driven over an old man”; and desired him to bring a light and look at the name on the cart; on which Osborne pushed on his cart, and told Swindall to hold his bother, and they then started off at a quick pace. They were subsequently seen at two other places, at one of which Swindall said he had sold his concern to Osborne. It appeared that the carts were loaded with pots from the potteries. The surgeon proved that the deceased had a mark upon his body which would correspond with the wheel of a cart, and also several other bruises, and, although he could not say that both carts had

28/07/2013

Delivery | Westlaw India

Page2

passed over his body, it was possible that both might have done so. Greaves, in opening the case to the jury, had submitted that it was perfectly immaterial in point of law, whether one or both carts had passed over the deceased. The prisoners were in company, and had concurred in jointly driving furiously along the road; that that was an unlawful act, and, as both had joined in it, each was responsible for the consequences, though they might arise from the act of the other. It was clear that they were either partners, master and servant, or at all events companions. If they had been in the same cart, one holding the reins, the other the whip, it could not be doubted that they would be both liable for the consequences; and in effect the case was the same, for each was driving his own horse at a furious pace, and encouraging the other to do the like. At the close of the evidence for the prosecution, Allen, Serjt., for the prisoners, submitted, that the evidence only proved that one of the prisoners had run over the deceased, and that the other was entitled to be acquitted. Pollock, C. B.—I think that that is not so. I think that Mr. Greaves is right in his law. If two persons are [232] in this way inciting each other to do an unlawful act, and one of them runs over a man, whether he be the first or the last, he is equally liable; the person who runs over the man would be a principal in the first degree, and the other a principal in the second degree. Allen, Serjt.—The prosecutor, at all events, is bound to elect upon which count he will proceed. Pollock, C. B.—That is not so. I very well recollect that in Regina v. Goode there were many modes of death specified, and that it was also alleged that the deceased was killed by certain means to the jurors unknown. When there is no evidence applicable to a particular count, that count must be abandoned; but if there is evidence to support a count, it must be submitted to the jury. In this case the evidence goes to support all the counts 1 . Allen, Serjt., addressed the jury for the prisoners. Pollock, C. B. (in summing up).— The prisoners are charged with contributing to the death of the deceased, by their negligence and improper conduct, and, if they did so, it matters not whether he was deaf, or drunk, or negligent, or in part contributed *97 to his own death; for in this consists a great distinction between civil and criminal proceedings. If two coaches run against each other, and the drivers of both are to blame, neither of them has any remedy against the other for damages. So, in order that one ship-owner may recover against another for any damage done, he must be free from blame: he cannot recover from the other if he has contributed to his own injury, however slight the contribution may be. But, in the case of loss of life, the law takes a totally different view—the converse of that proposition is true; for there each party is responsible for any blame that may ensue, however large the share [233] may be; and so highly does the law value human life, that it admits of no justification wherever life has been lost, and the carelessness or negligence of any one person has contributed to the death of another person. Generally, it may be laid down, that, where one by his negligence has contributed to the death of another, he is responsible; therefore, you are to say, by your verdict, whether you are of opinion that the deceased came to his death in consequence of the negligence of one or both of the prisoners. A distinction

28/07/2013

Delivery | Westlaw India

Page3

has been taken between the prisoners: it is said that the one who went first is responsible, but that the second is not. If it is necessary that both should have run over the deceased, the case is not without evidence that both did so. But it appears to me that the law, as stated by Mr. Greaves, is perfectly correct. Where two coaches, totally independent of each other, are proceeding in the ordinary way along a road, one after the other, and the driver of the first is guilty of negligence, the driver of the second, who had not the same means of pulling up, may not be responsible. But when two persons are driving together, encouraging each other to drive at a dangerous pace, then, whether the injury is done by the one driving the first or the second carriage, I am of opinion that in point of law the other shares the guilt. Verdict—Guilty. ____________________________________________________________________ 1 1. See the case of Regina v. O'Brian, ante , p. 115.