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Kelly v Metropolitan Railway Co [1895] 1 QB 944

Facts: The plaintiff was a fare-paying passenger on the defendant’s steam train. He suffered personal injury when the engine driver negligently failed to turn off steam in time to prevent the train running into a wall at the dead-end of a station. The defendant admitted liability. The only matter in issue was whether the plaintiff’s claim was properly founded in tort (as the plaintiff contended) or contract (as the defendant contended).


Held (English Court of Appeal): The plaintiff’s claim had properly been tried as an action in tort even though the claim could have been tried as an action in contract.


Held (Lord Esher MR): Stated the position as follows: “In old times the question of injury to a passenger through something done by the servants of a railway company gave rise to a dispute whether such an action was an action of contract or one of tort, and it was ultimately settled that the plaintiff might maintain an action either in contract or in tort. In the former case he might allege a contract by the railway company to carry him with reasonable care and skill, and a breach of that contract; and on the other hand, he might allege that he was being carried by the railway company to the knowledge of their servants, who were bound not to injure him by any negligence on their part, and if they were negligent that was a matter on which an action of tort could be brought. At the present time a plaintiff may frame his claim in either way.”

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