Notes and questions 1 Why is there one rule for goods and another for passengers? What justification(s) for the difference does Montague Smith J offer? Are they convincing? 2 Why should it be the passengers and not the railway company (and its shareholders) that have to carry the risks of faulty trains? 3 In order for a contractor to be in breach of contract he, she or it must be in breach of one of the actual promises (terms) which go to make up the contract. However, as the above case makes clear (‘after a consideration of the authorities’), this exercise is one of interpretation, not of the parties’ minds, but of the law. Yet the parties’ minds become one reason for not implying an absolute promise since that would, according to the court, lead to a situation where the parties have promised the impossible. Why, however, does Lindley J in the case below seem to take a different approach?
Lindley J: The defendant in this case was a jobmaster at Brighton, letting out
carriages and horses for hire. The plaintiff hired of him a landau, and a pair
of horses, and a driver, for a drive from Brighton to Shoreham and back.
After having driven some way, and whilst the carriage was going down hill
and slowly over a newly mended part of the road, a bolt in the underpart of
the carriage broke. The splinter-bar became displaced; the horses started off;
the carriage was upset; the plaintiff was thrown out and injured, and he
brought this action for compensation.