Cour de cassation, Second Civil Chamber, (pourvoi no. 03-16.772)Bull.civ. 2005.II. no. 336, p. 295
15 December 2005
Translated by:
Tony Weir
Professor B. S. Markesinis

Fault on the part of a victim harmed by a thing provides a total defence for its guardian only if it amounts to a case of force majeure. The claimant, who was drunk, fell asleep in a train, dismounted on the wrong side and was found kneeling on the edge of the track in the dark where she was struck by a train. The court of appeal dismissed her claim on the ground that the sole cause of the harm was her conduct which could neither be foreseen nor prevented, but in so deciding it violated article 1384(1) Code civil since her conduct was neither unforeseeable nor unavoidable, in view of the fact that  it was the duty of the railway company (SNCF) to ensure that no passengers were left on the train before it proceeded to the depot.

In view of article 1384(1) Code civil;

Given that the fault of the victim is a total defence for the guardian of a thing only if it constitutes a case of force majeure;

Given, according to the judgment under attack, that Mlle Douaud was on the rail-track leading to the Achères rail depot when she was struck by a train;

Given that in dismissing her claim for damages against SCNF the court below stated that it was her drunken state which explained her odd behaviour is getting on the wrong train, falling asleep, getting off the train on the wrong side, walking away from instead of towards the lighted station and then kneeling down on the side of the track in a dark and out-of-the-way place; that the driver of the train could not be blamed, nor could any fault of organisation be brought home to SNCF, since really the sole cause of the accident was the behaviour of the victim which could not have been foreseen or prevented so that the train company was wholly relieved of the presumption of liability;

But given that it was the duty of SNCF to make sure that there were no passengers left in the carriages before the train proceeded to the depot and that therefore the conduct of the victim could not be said to be unforeseeable or unpreventable, it was a violation of the text cited above for the court of appeal to exonerate the guardian of the thing which caused the damage;

For these reasons quashes and annuls …

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