Court case[1916] 1 AC 719

Sands was driving a wagon across the line of the appellant electric railway company at a level crossing. He negligently failed to look out for an approaching car (tram) and drove on to the line. The motorman saw the wagon in time to have stopped the car had its brakes been in good order, but the brakes were defective, the car was travelling at an excessive speed, and it could not be stopped. It struck the wagon and Sands was killed. His administrator, Loach, sued the company. The company argued that Sands's own negligence barred the claim and that at the moment of the collision the motorman had no opportunity of avoiding it.

The Privy Council held the company liable. Although the deceased was negligent in getting into the position of danger, the company's servant saw him in time and would have been able to avoid the collision but for the company's own negligence in sending out the car with defective brakes. A defendant who would have had the last opportunity of avoiding the accident, had he not by his own prior negligence disabled himself from using it, is in no better position than one who had and failed to use it. The negligence that prevented the motorman from stopping was therefore the decisive cause of the accident, and the deceased's negligence did not bar the claim.