Counsel for the appellant has pressed upon us that there was evidence to go to a jury that the deceased, who was a comparative stranger to the locality, when endeavouring to go to the station by the regular and legitimate approach, on account of the darkness not being able to see that approach, and misled by the reflected light on the roof of the goods shed, followed the high road which led to the approach further on till she struck the level crossing, and that then seeing the station lights she turned along the line in mistake for and thinking it was the regular approach, and that then she either immediately stepped into and fell into the cattle pit or was caught by the incoming train before she discovered her mistake, and that she made this mistake or blunder in consequence of the negligent omission of the defendants. But assuming that on account of the propinquity of the two approaches there was evidence of negligence to go to the jury on the part of the defendants in not lighting one or other of the two approaches— is there evidence fit to be submitted to a jury that by reason of this negligent omission on the part of the defendants the deceased came by her death. I think there is not; for, admitting the possibility of the theory as to the cause of death advanced by counsel for the plaintiff, it is equally possible that having passed the regular approach, and having reached the crossing she deliberately elected, instead of retracing her steps, to go along the line towards the station in order to catch her train. If this were the fact the defendants would of course not be liable, and the evidence is quite as consistent with this being the fact as it is with the state of facts propounded by counsel for the appellant. The plaintiff has to prove that the deceased's death was occasioned by reason of the negligent omission of the defendants. If in her endeavour to do this she adduces in evidence facts which are as consistent with the deceased's death being caused by her own negligence as with her death being occasioned by the negligent omission of the defendants the plaintiff fails to satisfy the onus of proof which the law casts upon her and she is properly nonsuited Wakelin v. L. and S. W. Railway Co. (a) In that case Lord Halsbury in delivering the judgment of the (a) [1886] 12 App. Cas. 41. F.C. 1899 KIRBY v. THE COMMISSIONER F.C. 1899 KIRBY V. THE VICTORIAN RAILWAYS Williams, J. House says: "If, in the absence of direct proof" (these are material words) "the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails, for the very simple reason that the plaintiff is bound to establish the affirmative of COMMISSIONER. the proposition-Ei qui affirmat non ei qui negat incumbit probatio." And further on in the judgment he says:-" It is manifest that the plaintiff who gives evidence of a state of facts which is equally consistent with the wrong of which she complains having been caused by-in this sense, that it could not have occurred without-her husband's own negligence as by the negligence of the defendants does not prove that it was caused by the defendants' negligence." For the reasons I have stated I think the nonsuit was right, and that this appeal should be dismissed, with costs. I am requested by my brother Holroyd to state that he concurs in this judgment. HOOD, J. In order to succeed in this action the plaintiff had to establish some negligent act or omission which substantially brought about her daughter's death. She had to give evidence which if believed would justify the conclusion that the defendant or his servants had violated some duty owing to the deceased, and had thereby brought about the injury complained of. I think that she has not succeeded in doing this. It was argued that as the cattle pit was near to the entrance, there should have been a light on either or both. Now as to the lighting of the gateway, a railway station like any other business place must be so lit up at night that persons lawfully there may be in reasonable safety. But this only extends to those actually on the premises. The plaintiff's contention is that the entrance must be so lighted as to be easily found by strangers outside the premises. If so the occupier of an ill-lit house would be liable for injuries caused by an obstruction in the road placed there by another if the person injured had been lawfully seeking the house and in looking for it had fallen over the obstruction. This cannot be right. If it were every man would be compelled to hang out a lamp in front of his door-an obligation not yet imposed on householders. Then it was argued that the cattle pit should have been lit. Against this it was correctly pointed out by Mr. Box that the owner of property, upon which is a dangerous excavation alongside the highway, owes a duty only to persons passing along that highway who are injured by accidentally falling in. Here there is nothing to justify the supposition that the unfortunate young lady, intending to pass along the highway fell into the pit, but everything tends against such a conclusion. The case was then presented in another, and a much more impressive way. There are two openings in the station fence somewhat alike, and within a short distance of one another, one safe and the other dangerous, and it was contended that it is a question for a jury to decide whether some precaution should not have been taken to prevent mistakes, and to enable passengers at night to distinguish between them, especially having regard to the effect of the lights at the station. The answer, however, seems to be that there is no evidence of any mistake. The body of the deceased was found on the lines— a place where primâ facie she had no right to be—and it is all conjecture as to how she came there. The plaintiff puts it that the deceased had turned in at the cattle-pit opening in the belief that it was the proper roadway; but the evidence is equally consistent with the view that when she arrived at the rails she knew by the appearance of the ground that she had passed the gate, but, fearing that she might miss the train, turned off to make a short cut, in ignorance of the existence of the cattle pit. Evidence such as this establishes neither case, and the plaintiff, on whom the onus of proof rests, must fail: Wakelin v. L. & S. W. Ry. Co. (b). The nonsuit, therefore, in my opinion was correct. I prefer to express no conclusion as to the liability of the defendant even if the mistake had been established. F.C. 1899 KIRBY v. THE VICTORIAN RAILWAYS COMMISSIONER. Hood, J. Appeal dismissed. Solicitors for the plaintiff: Gillott, Bates & Moir. (b) 12 App. Cas. 41. R. H. C. 1898 December 15, 16. 1899 February 3. A' Beckett, J. IN RE THE MURRAY RIVER STOCK, STATION, AND COMMISSION Company - Winding up--Voluntary liquidation - Mortgage Interest under covenant-Companies Act 1896 (No. 1482), s. 153. A trading company executed an instrument of mortgage to secure certain moneys owing by the company, and by a covenant in the deed agreed to pay interest at a certain rate. During the currency of the mortgage the company went into voluntary liquidation. The mortgagee claimed interest accruing since the date of the winding up. Held, that the claim could not, by reason of the provisions of sec. 153 of Act No. 1482, be allowed. In re the Irrigable Estates Co. Limited (23 V.L.R. 477) approved. SUMMONS on behalf of the liquidators of the Murray River Stock, Station, and Commission Agency Co. Limited for the determination of the following questions in the winding up of the company — 1. Is the Australian Joint Stock Bank Limited entitled to rank for any, and if so what sum for interest in respect of the period since the commencement of the winding up of the company upon moneys due to it at the date of the commencement of such winding up. 2. Is the bank entitled to rank as a creditor for any such sum should any dividend be paid to it in respect thereof by the liquidators. The Murray River, etc., Co. went into voluntary liquidation on 11th September 1893. Upon that date the Australian Joint Stock Bank Limited was a creditor of the company and was the holder of two mortgages over certain property of the company to secure the amount due upon two accounts opened by the company with the bank. The first of these accounts was an overdrawn account for 3,448l. 11s. 5d., and the other a "past due bills" account for 3,261l. 9s. 5d. There was a covenant in the mortgage deed securing the interest. The sums appearing to be due to the bank upon its books at the date of the commencement of the winding up were paid to the bank by the company. The bank now claimed interest upon moneys owing to it by the company at the rates provided for by the mortgages. Whereupon the present liquidators issued a summons to determine the questions set out above. Weigall appeared for the liquidators. Mitchell for the Australian Joint Stock Bank Limited. Cur. adv. vult. A'BECKETT, J., read the following judgment:-This is a summons to determine a question arising in a voluntary winding up as to the right of a creditor to prove for interest accruing since the commencement of the winding up. Sec. 153 of the Companies Act 1896 repeals the old rule on the subject, and enacts that "after the passing of this Act no interest in respect of any period subsequent to the commencement of the winding up of any company shall be computed charged or payable on any debt or claim due from the company and allowed in the winding up." On behalf of the creditor it has been argued that the section should be held to apply only to insolvent companies, and that injustice would arise if solvent companies were enabled to get rid of their obligations to pay interest by going into voluntary liquidation. It is alleged that taking into account its uncalled capital the company is solvent. A similar attempt to avoid the literal interpretation of the section was made in the case of In re the Irrigable Estates Company Limited (a), before Williams, J., who decided that the effect of the section could not be restricted in the manner contended for. After consulting the authorities referred to in argument before me I have come to the same conclusion. If I were disposed to consider that some qualification should be implied I should be at a loss to know how that qualification should be expressed. If it were to be read as confined to insolvent companies it would need some definition to exclude doubt as to how uncalled capital was to be regarded in determining insolvency. If it left the right to interest unaffected with regard to solvent companies it would also need some provision regulating the right to interest as between the different classes of creditors who were dealt with by the repealed rule 22. The absence of any such provision supports (a) [1897] 23 V.L. R. 477. 1899 In re THE MURRAY RIVER STOCK, STATION, AND COMMISSION AGENCY COMPANY A'Beckett, J. |