^ Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUQLASS BOARDMAN FrRST O'^AN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELI.EN D. WILLIAMS KD 1975!RlTl87r''''-"'"^ Hii1if.,.!ffi.o!...n.ejgligence. 040 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022241040 THE LAW NEGLIGENCE THE LAW NEGLIGENCE. 3^wni (IBlrituitt. BY ROBEET gAMPBELL, M.A., OF LINCOLN'S INN, BARRISXER-AT-LAW, ADVOCATE OF THE SCOTCH BAR, AND LATE FELLOW OF TRINITY HALL, CAUBRIDGE, LONDON: STEVENS AND HAYNES, EatD lauiiltjSijeriS, BELL YABD, TEMPLE BAE. 1878. /ll/oz^o PRINTED BY "WILLIAM CLOWES AND SONS, STAMFORD STREET AND CHARIKG CKOSS. TABLE OF CASES CITED. l^.B. — The references are to the pages. Abbot V. Macfie Adam* v. Cal. Ry. Co. . V. Glasgow & S. W. Ey, FAOB 182, 187 . 151 Co. • u. Lane. & Yorkshire 186 Ry. Co 194,2-7,240 Aldridge v. G. W. Ry. Co. . . 56 V. Clark 98 V, L. & S. W. Ey. Co. . 139 Allen V. Carter ..... 43 Allison V. Rayner . . . 101, 105 Andrews v. Hawley . . . 103 Angier v. Stannard . . . 114 Angus V. Dalton .... 34 Ap])lebee v. Percy .... 137 Armstrong v. L. & Y. Ry. Co 185 Arnold v. Cheque Bank . . 132 Ashworth v. Stanwix . . . 139 Atkinson v. Macreth . . . 146 ' — V. Newcastle, &c.. Waterworks Co. . . . 39, 171 Attorney-General v, Bradford Navigation ..... 27 Atwood V. Maude . . . . 7, n. Austin V. G. W. Ry. Co. , . 90 — V. Manchester, &c., Ry. Co 73 Axford v. Prior . . . . 63, n. Ayles w. S. E. Ry. Co. . . 89 B. Baikie v. Chandless Bailiffs of Romney Marsh v. Triuity House Baker v. Bolton V. Carter . Baldwin v. Casella Balleny v. Cree . Barles v. Strathern & Douglas Barnes u. Ward Bartonshill Colliery cases . Baxendale v. L. C. & D. Ry. Co, V. Bennett 171 20 156 54, 137 155 Bay ley v. Manchester, &c., Ry, Co Baylis v. Lintott . Beal V. Marchais Beasyer v. Maclean . Becher v. G. E. Ry. Co. . Bechervaise v. G.- W. Ry. Co. Berghelm v. G. E. Ry. Co.. Bessant v. G. W. Ry. Co. . Billbee v. L. B. & S. C. Ry. Co, Bird V. Holbrook FAOB 102 104 30 137 70, 175 113 144 19, n. 190 43 91 228 91 42 60 187, 188 Blackman v. L. B. & S. C. Ry. Co 88 Blair v. Bromley .... 164 Blake v Midland Ry. Co. . . 92 Blakemore u. B. & E. Ry. Co. . 167 Blamires v. Lano. & York. Ey. Co 41, 59 b 2 VI TABLE OF CASES CITED. PAGE Blower v. G. W. By. Co. . 66, 67 Blyth V. Birmingham Water- works Co 1 Boloh V. Smith 63 Bolton, In re 100 Bourne v. Gatliff .... 66 Bracey v. Carter . . . 105, 106 Bradburn v. G. W. Ry. Co. . 93 Bradshaw v. Lane. & York. Ry. Co 21 Brand v. Hammersmith By. Co. 51 Brass v. Maitland ... 77, 168 Bridges V. N. London By. Co. 126, 127, 181 Briggs V. Jones 130 V. Oliver .... 30 Bristol. & Exeter By. Co. v. Collins 71 British Columbia Saw-mill, &c. V. Nettleship 177 British Mutual Investment Co. V. Cobbold 108 Britton v. Great Western Cotton Co 41, 155, 181 Brock V. Kemp 44 62, n. 108 99 139 19, n. 154 107 102 81 87 145 171 114 88 30 Brookes v._ Courtenay . Brooks V. Day . Brumbridge v. Massey . Brunswick (Duke of) v. Sloman Bryant '»• Herbert . Brydon v. Stewart . Bulkeley v. Wilford Bulmer v. Gilman . Burgess v. Clements Burke v. Manchester, &c., Ry. Co Burns v. Poulson . Burrows v. March Gas & Coke Co ■ • V. Lock Buxton V. N. B. Ry. Co. Byrne v. Boodle 0. PAGB Calder v. Cal. Ry. Co. . . . 150 Caledonian By. Co. v. Greenock Sailing Co 63 Campbell V. Ord .... 188 Cargill V. Bower .... 117 Carstairs v. Taylor .... 50 Cassidy v. K B. By. Co. . . 124 Castle V. Parker .... 134 Caswell V. Worth .... 183 Cattle V. Stockton Waterworks 175 Cayle's case 81 Chalmers v. Dixon .... 48 Chapman v. Chapman . . . 108 ■ — V. Eothwell ... 62 V. Van Toll ... 102 Charob V. S. E. By. Co. . . 92 Child V. Hearn 42 Chown V. Parrott .... 105 Christie v. Griggs .... 83 City of Glasgow Union By. Co. V. Huntet 51 Clark, Se 103 V. Chambers . . . 173,188 Clarke. V. Gird wood. . . . 109 Cleveland -w. Spier . . . . 118 Cliff V. Midland By. Co. . 59, 60 Cockle V. S. B. By. Co. . . 126 Coe V Wise .... 37, 139 Coggs V. Bernard ... 14, 163 Cohen v. S. E. By. Co. . . . 91 Collins V. GrifBn .... 104 V. Middle Level Com- missioners 170 CoUis V. Selden 179 Cook V. Bell .... 154, 183 V. Broomhead. . . . 105 V. E. of Rosslyn, Se Hook 109 Cooke V. Waring . . . . 53, n. Cooper V. Stephenson ... 99 Corbett v. G. W. By. Co. . . 42 Corby v. Hill 120 Corporation of Buthin v. Adams 104 TABLE OP CASES CITED. vn FAGS Cory V. Thames Iron Co. . . 177 Cotton V. Wood . . 94, 118, 120 Coucli V. Steel .... 40, 157 Cox V. Leech 101 Craoknell v. Mayor & Corpora- tion of Thetford .... 51 Crafter v. Metr. Ry. Co. . . 88 Craig V. Watson .... 108 Crawford v. Cinnamond . . 110 Credit Mobilier (Court of Appeal in France, August 1, 1868) . 116 Czech .V. Gen, St. Nav. Co. . 77 D. D'Arc V. London & N. W. Ry, Co Daniel v. Metr. Ry. Co. Davidson v. Mackenzie V. Monklands Ry, &c. Ry- Davies, Be ... . V. Mann Dawson v. Manchester, Co - V. Midland Ry. Co. De Roupigny v. Peale . Degg V. Midland Ry. Co. Dennis v. Tovell V. Whetham . Dickson v. Renter Tel. Co. Dixon V. Wilkinson . V. Muckleston . Doel V. Sheppard . Doolan v. Midland Ry. Co. Doward v. Lindsay . Duke of Brunswick v. Sloman Dundonald, E. of, u. Masterman Dunn V. Birmingham Canal Co. Co, 76 89 45 185 110 189 87 42 101 162 23 43 72 109 132 183 75 23 139 146 51,56 E. Eaglefield Colliery Co., In re . 118 Earl of Dundonald v. Masterman 146 Eaves v. Hickson . . . PAGR . 112 Edgar v. Law .... . 154 Edmonds v. Peake . 113 Eisten v. N. B. Ry. Co. . . 20 Elkington v. Holland . . 102 Ellis V. G. W. Ry. Co. . . . 61 F. Fair v. London & N. W. Ry. Co 223,234 Farrant v. Barnes .... 168 Farwell v. Boston Railroad Corpn 149 Feltham v. England ... 149 Fenwick, The John ... 133 Finlay v. N. B. Ry. Co. . . 74 Firth V. Bowling Iron Co. . 33, 172 Fisher v. Prowse .... 169 Fisk V. Kelly 110 Fleming v. Manchester Ry. Co., 26 W. R. 741 . . . . 19, n. V. Orr 53 Fletcher v. Peto .... 153 V. Rylands ... 47 Floyd V. Nangle . . . 105, 109 Ford V. Cotesworth ... 22 Fordham v. L. B. & S. C. Ry. . 124 Forem'an v. Mayor of Canter- bury 31 Forshaw v. Welsby ... 107 Fowler v. Lock . . 135, 155, 161 Francis v. Cookrell .... 93 Frankland v. Cole . . . 101, 110 V. Lucas . . . 109 Fray v. Voules .... 103, 104 Gallagher v. Humphrey . . 120 Gallin v. L. & N. W. Ry. Co. . 75 Galloway v. King .... 187 b 3 Vlll TABLE OF CASES CITED. FAGB Garnet f. Bradley . . . .19, n. Gautret v. Egertpn .... 371 Geddes v. Proprietors of Bann Reservoir 52 Gee V. Metr. By. Co. . . . 124 George v. Skivington . . . 178 Gibb V. Grombie .... 155 Gibbs, &c. V. Mersey Docks and Harbour Trustees ... 37 Giblin v. McMullen . . 163, 166 Gibson v. Mayor of Preston . 31 Gill V. Manchester, &c., By. Co 67, n., 71 Girdwood v. N. B. Ey. Co. . 65 Gladman v. Johnson ... 54 Glover v. E. London Water- works Co 56 Godefroy v. Dalton. . . 101, 103 V. Jay .... 105 Gogarty v. Great Southern & Western Ry. Co 72 Gorris v. Scott 42 Graham v. ... 99 Grant v. Cal. Ey. Co. . . 61, 184 Gray v. Pullen 159 Great Northern Ey. Co. v. Harrison 90 Great Western Ry. Co. v. Blake 88 V. Crouch 69 V. Talley 90, 91 Great • Western Railway of Canada 87 Greenhorn v. Addie ... 20 Greenland v. Chaplin . . . 183 Gregory v. Hill 152 Grill V. Gen. Iron Screw Col- liery Co 16, 77 Grote 1). Chester & Holyhead Ry. Co 38, 87 Guardians of Halifax, &c. . 113, 132 Gwinnell v. Earner .... 27 PAGE Hadley v. Taylor .... 27 Halifax, Guardians of, &c. . 113, 132 Hamilton v. Caledonian Ry. Co. 90 Hammersmith Ry. Co. v. Brand 51 Hammond v. Vestry of St, Pan- eras 38 Harris v. Midland Ry. Co. . . 76 ■u. Mobbs 173 Harrison v. G. N. Ey. Co Hart V. Frame Harvey v. Mount .... Hawkins v. Harwood . Hayne v. Ehodes .... Helene, The. See Ohrloff v. Briscall. Hemming v. Batchelor . Henderson v. Stevenson Henkel v. Pape . Heugh V. London & N. W. Ey. Co Hibbs V. Boss . Hicks V. Newport, &c., Ey Higgs V. Maynard . Hill U.Allen . . . — - u. Featherstonhaugh V. New Eiver Co. . Hinshaw v. Arden . Hiort V. Botts . Hobbs V. L. & S. W. Ey. Co. Hoby V. Built . . Hodgkinson w, Ennor Holmes v. Clarke . V. N. E. Ev. Co Hook, He (Cook V. E. of Eoss- lyn) 109 Hopgood V. Parkin . . 99, 112, 138 Home V. Midland Ry. Co. . . 177 Ho wells V. Landore. . . . 150 Hudson V. Baxendale ... 69 Hughes V. Macfie .... 187 Humphreys v. Cousins ... 49 182 98 107 101 21 92 72, n. Co, 69 78 93 30 105 106 170 96 129 175 . 101 . 49 154, 155 62, 162 TABLE OF CASES CITED. IX PAGE Hunter W.Caldwell. . . 99,101 V. Walters .... 131 Huntley v- Bulwer .... 101 Huroman v. N. B. Ry. Co.. . 48 Eyams i)., Webster . . .56, 134 I. lUedge V. Goodwin .... 182 Indermaur v. Dames . . 62, 152 Jackson, Metr. Ry. Co. v. . 125, 176 James v. a. W. Ry. Co. . . 61 JefFerys v. Marshall . . . 113 Joel V. Morrison . . . .143 John V. Bacon 89 John Fenwick, The ... 133 Johnston's Claim, Be United Service Co 165, 176 JollifFe V. Wallasey Local Board 37 Jones V. Festiniog Ry. Co. . . 51 u. St. John's College . 95 U.Smith 130 Joyce u. Capel 147 K. Kearney v. London, Brighton, & S. G. Ry. Co Kemp V. Burt .... Kendall v. L. & S. W. Ry. Co, Knights V. Quarles . KopitofF f. Wilson . Laidler v. Elliot Lamb v. Walker Lancashire, The 28 104 67 98 77 102 35 133 PAGE Lancroni v. Drury .... 77 Land Credit of Ireland v. Fer- moy 112 Lane v. Cotton Langridge v. Levy . . . .178 Lawrence v. Jenkins , . . 171 Leather «. Simpson . . . . 132 Leddy v. Gibson .... 149 Leggott V. G. N. Ry. Co. . . 21 Leishman v. London, Brighton, & S. C. Ry. Co 88 Leuw V. Dudgeon .... 77 Lewis V. G. W. Ry. Co. . . 75 V. L. C. & D. Ry. Co. 126, 181 V. Samuel .... 106 Lillie (Court of Session) . . 99 Liquidators of Western Bank v. Douglas, &c Ill, 117 Liver Alkali Co. v. Johnston . 78 Lloyd V. Harrison .... 43 London, Brighton, & S. C. Ry. Co. V. Walton .... 189 Long V. Orsi 102 Lord V. Midland Ry. Co. . . 74 Lovell V. Howell .... 150 Luke V. Brydges .... 108 Lumsden v. Kussell .... 185 Lunt V. Lon. & N. W. By. Co. 57 Lynch v. Nurden . . . 182, 186 M. McCarthy v. Young . . 123, 168 MoCawley v. Furness Ry. Co. . 75 McDonald v. Highland Ry. Co. 67 McManus v. L. & Y. Ry. Co. . 66 McMartin v. Hannay ... 27 McQueen v. G. W. Ry. Co. . 73 Macrow v. G. W. Ry. Co. . . 90, 91 Manchester, &o., Ry. Co. Fullerton Wallis 61 39 TABLE OF CASES CITED. Ey. PAGE Mangan v. Atterton . 185, 187, 188 Manley v. St. Helen's Canal, &c., Co. . . . Manning v. Wilkin . Marpesia, The ... Martin v. G. I. Peninsula Co Martineau v. Kitching . Matchett v. Parker . . Matson v. Baird. . . Matthews v. Discount Corpora- tion .... Mayfield v. Burton . Mellors v. Shaw Merry v. Wilson Mersey Docks, &c., Trustees v. Penhallow & Others ; the Same v. Gibhs & Others . . 35, 37 139, 159 Metr. Ey. Co. v. Jackson . 125, 176 Metzenburcr y. Highland Ey. Co. 69 Miranda, The . Mitchell V. Crasweller — V. L. & T. Ey. Co, 35 104 94 77 23 109 58 l'-'8 131 139 153 Ey. Moffatt V. Bateman. Montriou v. Jefferys Morgan v. Vale of Neath Co 149 Mors le Blanche v. Wilson. . 70 Mumford v. Stohwasser . . 130 Munroe v. Leach .... 56 Murphy v. Phillips . . . 154 Murray v. Currie . . 78, 137, 151 77 142 76 121 102 Muschamp v. Lancaster Preston Ey. Co. . Musgrave v. Smith . N. and 70 48 Nelson v. Liverpool Brewery Co. 27 Nichols V. Marsland ... 49 Nicholson v. L. & Y. Ey. Co. . 62 PAGE Norris v. Kohler . 62 Norton v. Cooper . . 105 Notara v. Henderson . . 133 Nugent V. Smith . . . 80 Nye V. Macdonald . . 240 o. Ogle, Ex parte, In re Pilling . O'Hanlon v. G. W. Ey. Co. . Ohrloff V. Briscall. The Heltoe Oliver v. N. E. Ey. Co. . . 114 69 77 58 138 Omoa, &c., Co. ■;;. Huntley . Oppenheim v. White Lion Co. 15, n., 81 Osbom V. GiUett .... 20 Otter, The 133 Overend, Gurney, & Co. v. Gumey, &c 108, 111 Owen Wallis, The . . . . 190 P. Paddock v. N. E. Ey. Co. . . 62, n. Page V. Defries 137 Parana, The 177 Parker v. G. W. Ey. Co. . . 68 ■!;. Kolls 98,99 V. S. E. Ey. Co. . 92, 97 Pamaby v. Lancaster Canal Co. 36 Patent Bread Machinery Co. . 1C6 Paterson v. Wallace . . .154, 181 Patscheider v. G. W. Ey. Co. . 91 Paxton V. N. B. Ey. Co. . . 67 Peacock v. Young .... 174 Pearson v. Plucknett . . . 135 Peck V. N. Staffordshire Ey. Co. 75 V. Gumey 117 Pendlebury v. Greenhalgh 32, 94, 159 Penton v. Murdock . . . 168 Peto V. Hammond .... 130 Pickard v. Smith .... 159 TABLE OF CASES CITED. XI Piokford v. Grand June. Ry. Co. (38 Piloher v. Uawlins . Pilling, In re, Ex parte Ogle Pitt V. Yalden . . Plant V. Pearman . Playford v. United King Telegraph Co. Plumer v. Gregory . Pollock V. Cassidy . Pontifex v. Midland Ry. Co, Potter V. Faulkner . V. N. B. Ry. Co. dom Potts V. Dutton Poulson V. Thirst . Poulton V. S. W. Ry. Co. Powler V. Hider. Praeger v. Bristol & Exeter Co Prestwich v. Poley . Pretty v. Bickmore . Priestly v. Fowler . Purves V. Landell . Pym V. G. N. Ry. Co. . . . Q. Quebec Marine Insurance Co. v. Commercial Bank of Canada E. 131 114 102 102 . 72 . 146 . 154 . 19, n. . 162 . 128 98, 106 . 234 . 139 . 162 Ry- 126, 181 . 104 . 27 . 148 . 105 . . 87 77 Badley V. L. & N. W. By. Cc . 189 RatcliflFe v. Bernard . . . . 131 Eayner V. Mitchell . . . . 145 Read v. Edwardes . . . .53, n. V. G. B. Ry. Co. . . . 191 Bedhead v. Midland Ry. Co. 23, 83, 86 Reece v Rigby .... . 101 Reeve v . Palmer . 100 Reg. V. Stevens . . . 27, 137 Eex V. ?earse .... . 55 PAHK 44 Rex V. Scriveners Co. . V. 3'gw 101 Reynolds «. S. W. Ry Co.. Rice V. Rice Richardson v. G. E. Ry. Co. V. Metr. Ry. Co. 126 131 86 124 109 88 Ridley v. Tiplady .... Rigg V. Manchester, &c., Ry. Co, River Wear Commissioners v. Adamson 22,23,50 Robbins v. Jones .... 169 Robertson v. Brown . . . 154 Robinson v. Davidson ... 22 Robson V. N. E. Ry. Co. . . 127 Romney Marsh v. Trinity House 171 Rooth V. N. E. Ry. Co. . . 75 Rose V. N. E. Ry. Co. . . . 127 Ross V. Fidden 50 Rowley v. L. & N. W. Ry. Co. 21 Ruthin, Corporation of, v. Adams 104 Rylands v. Fletcher ... 47 S. St. Aubyn v. Smart , . . 146 Sandeman v. Scurr .... 78 Soaife v. Farrant .... 69 Scott V. London Dock Co. . 29, 152 V. Shepherd .... 169 Searle v. Laverick .... 94 Senior v. Ward 183 Sdrandat v. Saissd .... 161 Seymour v. Maddox . . .61, n. Sharp V. Powell . . . 169, 174 Shaw V. Arden 106 Shepherd v. Bristol & Exeter Ry. Co 70 Shields v. Bdin., &o.i Ry. Co. . 147 Ship u. Crosskill .... 117 Shoebottora v. Egerton. . . 35 Simmons v. Rose .... 104 Simpson v. L. & N. W. By. Co. 177 xu TABLE OF CASES CITED. Sinerw. G. W. Ry. Co.. Singleton v. B. 0. Ey. Co, Sisters, The .... Skelton v. L. &c N. W, By. Skipp V. E. C. Ey. Co. Smith V. Baxter V. Fletcher . V. G. E. Ey. Co. V. Green . Howard . • V. PAGE . 126 . 184 . 172 Co. 59, 183 . 157 . 193 . 48 . 54 . 172 . 155 V. Lon. .& St. Docks Co. , • V. L. & S. W. Katharine . 62, 64 Ey. Co. 1, 169, 170 V. St. Lawrence Tow-boat Co 184 V. Steele . . . . 62, 151 V. Thackerah . . 17, 34 Sneddon v. Mossend Colliery Co 149 Sneesby v. L. & Y. Ey. Co. . 172 Southcote V. Stanley. 62, 64, 120, 121 Spencer, ffie 100, 109 Stables v. Eley 139 Stannard v. UUithorne ... 98 Stapley v. Lon. B. & S. C. Ey. Co 57 Steel v. Lester 138 V. State Line S. Co. . . 77 Stephen v. Thurso Police Com- missioners .... 38, 159 Stiles V. Cardiff Steam Nav. Co. 137 Stokes V. Trumper . . . 105, 106 Storey v. Ashton .... 141 Stubley v. Lon. & N. W, Ey. Co 59, 183 Submarine Telegraph Co. v. Dickson 118 Sullivan v. Waters .... 63 Swannell v. Ellis .... 110 Swinfen v. Lord Chelmsford . 46 Talley v. G. W. Ey. Co. Tarry v. Ashton Taylor v. Gorman . ■ — V. Greenhalgh . PAGB .90,91 26, 159 98 32,94,158 Tenant v. Goldwin .... 49 Thetis,, The 147 Thomas v. Ehymney Ey. Co. . 88 Thomson v. Greenock Harbour Trustees 38 -v.KAl 51 V. N. E. Ey. Co. . . 242 Thorogood v. Bryan . . . 185 Todd V. Flight 27 Treson v. Pearman . . . 98, 103 Tuff V. Warman .... 139 Tunney v. Midland Ey- Co. . 149 Turner v. S. E. Ey. Co. . . 77 Turquand/y. Marshall 108,111,114,115 'IT. Union Steamship Co. v. Aracan 190 United Service Co., Johnston's claim 165, 17 Vaughan v. Taff Vale Ey. Co. 51, 55 Vaughton v. L. & N. W. Ey. Co 72 Venables v. Smith . . . . 162 Virgo, The 23 Virtue v. Commissioners of Police of Alloa .... 37 w. Wahlberg v. Young . . . 134 Waite V. N. E. Ey- Co. . 184, 185 TABLE OF CASES CITED. XUl Walker v. Midland Ry. Co. «. S. E. Ry. Co. Wanless v. N. E. Ry. Co, AVarburton v. G. W. Ry. Co. Warren v. Wildoe . Watkins v. G. W. Ry. Co, Watling V. Oastler . Watts V. Porter . PAGB 59 139 57 150 . 155 63, 181 . 154 . 99 . 154 By- 30, 159 Co. 126, 181 Western Bank, Liquidators of, V. Douglas, &c. . . . Ill, 117 Westmoreland v. Holland . . 113 Whatman v. Pearson (in some reports called Whitemore v. Pearson) 140,143 Whitaker v. Manchester, &o., Ry. Co White V. Prance V. Hindley Local Board Whitehead v. Jordan . Weems v. Matbieson . Welfare v. Lon. B. & S. Co Weller v. L. B. & S. C. Ry, Whiteley v. Pepper Wilkiuson v. Fairrie 126 62 32 130 145 63, n William Inman v. F. Rech and others 190 Williams v. G. W. Ry. Co. . 58 Wilson V. London, Italian, &c., Co 66 V. Merry . . . 149, 154 V. Newbury ... 50 Winterbottom v. Lord Derby . 31 V. Wright . . 179 Wood V. Wood 100 Woodger v. G. W. Ry. Co.. . 176 Woodhead v. Gartness Mineral Co 153 Woodward v. L. & N. W. Ry. Co 73 Worth u. Gilling .... 54 Wright V. L. & N. W. Ry. Co. 63, 162 V. Midland Ry. Co. . 88 V. Pearson .... 54 Wyatt V. G. W. Ry. Co. . . 184 Wyllie V. Cal. Ry. Co. . . . 162 z. Zunz V. S. E. Ry. Co. 77 THE LAW OF NEGLIGENCE. GENERAL PRINCIPLES. § 1. The subject of this treatise has for its range Subject of this a class of cases not capable of very accurate defini- The Law of tion, but determined by the circumstance that the ''^'^°''°°' question of" negligence " forms a prominent feature in the materials for their solution. The subject may be named " the law of Separation or civil redress for damage by Negligence ;" or, for the sake of brevity, " the law of Negligence." " Neg- ligence " is a term which has been of late, in the current language of the forum, applied to cases of a very wide and heterogeneous class. It has been a definition described as " the omission to do something which Aiderson a reasonable man, guided upon those considera- ordinary tions which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. [Aiderson, B., u^ Blyth v. Birmingham Waterworks Company, cited in Smith v. L. ^ S. W. Ry. Co., L. R. 5 C. P. 102.] This dictum seems open to B ^ THE LAW OF NEGLIGENCE. the criticism that the term " negligence " does not properly denote the omission or act itself, but the state of mind of the person who is guilty of the act or omission. But the description, though having no pretension to accuracy as a definition, may serve to indicate the class of cases which are usually grouped under the term " negligence " in our common legal parlance. And the negligence indicated in this description is commonly desig- nated " ordinary neghgence " by way of distinc- tion to that negligence which is properly indicated, as I shall show further on, by the terms culpa lata and culpa levissima. The description includes not only acts which result from negligence, in the usual and popular acceptation of the term, but also those acts or omissions which result from states of mind distinguishable from negligence, and more properly described by the terms heedlessness and rashness. "Negligence" Xhc shades of difference between the states of as used bj English law- mind implied by these words in their ordinarv yers includes j. ./ j heedlessness and popular sonse are well analysed by Austin in and rashness, ./ t/ his twentieth lecture (p. 444, 3rd Ed., and Students' Ed., p. 208). They may be shortly noted as follows : — In cases of negligence (in the popular sense of the word), the person adverts not to the act which it is his duty to do. In cases of heedlessness, he adverts not to the consequences of the act which he does. In cases of rashness, he adverts to those conse- ROMAN LAW — 0LAS8I0AL JURISTS. 3 quences of the act ; but, by reason of some assump- tion, which he examines insufficiently, he concludes that those consequences will not follow the act in the instance before him. All these states of mind may be included in the Each dietin- term inadvertence. Each is clearly distinguish- tn«e»««»i, but, able from intention ; and they are analysed by tntmtLn,' Austin, in connection with intention, as being, fmputabmty. equally with intention, grounds for imputing guilt to the author of the act or omission. It must be further observed that negligence, heedlessness, and rashness, as well as intention, properly describe a state of mind, and that no one of them can of itself constitute injiij-y or breach of duty. But one or other of these four states of mind is a condition precedent to an injury or breach of duty being committed. The opposites to negligence — heedlessness — Negligence rashness — respectively may be named " diligence " Difigenoe." — " heed " — " circumspection." But, with a view the^liifgenL to conforming to the language familiar to English lesTthe ifegii- lawyers, I shall in this essay include the three wmeuffice for species of inadvertence under the common name '""'''• of " Negligence ;" and by way of contrast, I shall include the last three under the term " Diligence." Negligence, then, is the want of diligence. And the greater the diligence required by law in the particular case, the smaller is the degree of negli- gence which will be sufficient to make the act or omission an injury. « 2 THE LAW OF KEGLIGENCB. Dolus — Casus. Culpa lata. Culpa levis. Terms used by & 2. Neerliffence, in the wide sense which I have Roman lawyers "' o o ' -Culpa- just given to the word, is by the Roman lawyers termed " Culpa," and is distinguished from ^^ Dolus" which, used in collocation with culpa, signifies intention, and nothing more. In the same collocation the word casus (or accident) is by the Roman lawyers used to indicate some fact which negatives the presumption that the occur- rence happened either through culpa or dolus. Culpa lata is great, or gross negligence. Culpa levis, a slighter degree of negligence, opposed, by way of comparison, to culpa lata. Diligentia, or exacta diligentia, is the kind of diligence required where something even less than culpa levis would infer guilt. And, in order to express the degree of culpa correlating to exacta diligentia, the modern civilians have employed the term culpa levis- sima (a). What is termed casus by the Roman lawyers, is in English law embraced in the term "act of Grod," indicating some force the effect of which it is beyond human skill or foresight to avert. The " act of God " is usually coupled with " the Queen's enemies," for whose acts the lieges are not responsible. Casus also embraces occurrences Culpa levis- sima. Casus. (a) The only use of culpa levissima that I am aware of, by the classical jurists, is in connection with the lex Aqui- lia in D. ix. 2, 1. 44 pr. « In lege Aqnilia et levissima culpa venit." The analogy to this in English law we shall see ia the class of cases arising out of dangerous tenements, &c., §§ 4, 14, post, pp. 8, 26, &c. ROMAN LAW — CLASSICAL JURISTS. 6 which may happen through immediate human agency, but over which the person in question has no actual or presumed control. § 3. Bearing in mind the meaning of these Degrees of expressions, and collating the passages of the negligence, Corpus Juris where they occur, it is not difficult to distinguish . •ii "•! I'lii , the cases to to recognise the principles upon which the great which they practical lawyers of the classic period were wont appTy! "^ ^ to estimate the degrees of diligence or negligence forming the criterion of Hability in the various transactions of life. The general principles are these : — 1. Where the contract or transaction out of Rules (Roman which the duty arises is for the benefit solely of fitof ohiigor— the person to whom the duty is owed, the person owing the duty is liable for dolus (or intention), and on no other account. 2. Where the contract or transaction out of 2. Benefit of both — Dolus et which the duty arises is for the mutual benefit of Culpa. both, then he is liable for culpa. 3. Where the contract or transaction out of 3- Benefit of f. T , n obligee — Bol. which the duty arises is for the benefit solely of et Cuip. et . Diligentia. the person owing the duty, he is bound to the utmost (that is to say to a very great degree of diligence), and he is liable for negligence although very slight. § 4. Of the first kind is the duty arising out of instances— depositum, a word which, as used by the Eoman b THE LAW OP NEGLiaBNCB. lawyers, properly denoted the delivery of a thing to a person who gratuitously undertakes to keep it for the depositor. [Inst. iii. 14, § 3 ; D. xiii. 6, 5, § 2 ; D. L. 17, 23.] 2. The con- 2. Of the socond kind are the duties arising out tracts usual in o businesa. of the more usual contracts : — e.g., deposit when payment {merces) is received for the care of the thing. This was properly designated by the Roman lawyers not deposiitum but a species of locatio. [D. XVI. 3. 1, § 9, eod. tit. 5, § 2.] Other examples are pledge, sale, locatio-conductio (gene- rally), partnership, and indeed every contract or transaction where benefits accrue on both sides, or, as we should say in English law, where valuable consideration passes to the person promising, amongst otiier things, the diligence in question. [D. XIII. 6. 5, § 2 ; D. xiii. 7. 13, § 1 ; D. xviii. 6. 11 ; D. L. 17. 23.] Within this large class of cases many shades of difference must necessarily occur in the kind and degree of diligence exacted, or of the negligence punishable by law. Such degrees of diligence or negligence must be esti- mated according to the circumstances of the case. [D. xiii. 6. 18 pr,] For instance, where the matter is one of mere common sense, the diligence required is such as " homines frugi et diligentes pr^stare debent." [D. xviii. 6. 11.] But if a matter upon which skilled labour is hired, want of the neces- sary skill is reckoned negligence. [D. xix. 2. 9, § 5.] And where the contract is partnership, the ROMAN LAW — CLASSICAL JURISTS, diligence required from the partner is that which he is accustomed to bestow upon his own affairs. For says the law, if a man take to himself a negli- gent partner, he has himself to blame. [Inst. iii. 25. 9.] (a). 3. Of the third kind is the duty of care on the 3. Cmmoda- part of the borrower, arising out of commodatum or gratuitous loan. In this case it is said, " Talis diligentia prsestanda est qualem quisque diligentis- simus paterfamilias suis rebus adhibet, ita ut tantum eos casus non pr^stet quibus resisti non possit, veluti mortes servorum, quaa sine dolo et culpa ejus accidunt," &c. [D. xill. 6. 18 pr.] And again : " At is, qui utendum accepit exactam dili- gentiam custodiendse rei prsestare jubetur, nee sufScit ei tantam diligentiam adhibuisse, quantam in suis rebus adhibere solitus est si modo alius diligentior poterit earn rem custodire. Sed propter majorem vim, majoresve casus non tenetur, si modo non hujus ipsius culp^ is casus iutervenerit. Alioqui, si id^ quod tibi commodatum est, peregre tecum ferre malueris, et vel incursu hostium praedo- (a) The same principle has of estimating B.'s fitness for the been applied by an English business. [Atwood v. Maude, Court of Equity to a claim by L. E. 3 Ch. 369.] The prin- A., arising between partners ciple of "diligentia quam in (A. & B.) on the ground of suis rebus," &c., applied also A.'s negligence and incompet- in the Eoman law to res do- ence, it being proved that tales and to the quasi-partner- before entering into partner- ship of co-heirs. D. xxiii. 3. ship A. had ample opportunity 17 pr. ; D. xx, 2, 25, § 26. THE LAW OF NBaLIGENCB. numve, vel naufragiq amiseris, dubium non est quin de restituenda ea xe tenearis." [Inst. in. 14. 2, cf. D. XIII. 6. 5-13 .] If, however, the transaction, although called commodatum (and therefore nomi- nally gratuitous), is one from which the lender is to receive benefit, the duty of diligence will be reduced to one of the second class, that is to say, the borrower will be liable simply for culpa, or negligence of an ordinary kind and degree. [D. -Xiii. 6. 18 pr.] Under this head also, though on a somewhat different principle, may be classed the obligations laid upon persons in the use or enjoy- ment of their own property by the lex Aquilia, the principle of which was to presume injury from the fact of damage to others while exercising their lawful rights. Here, as we have seen, culpa levis- sima inferred liability. [D. ix. 2. 44 pr.] Or, what amounted to the same thing, culpa was pre- sumed, and nothing could rebut the presumption but proof of casus, that is to say, accounting for the occurrence by a cause against which no human care or foresight would have availed. Extension of 1st class to culpa lata, which is by- law mquipa- rata dolo. § 5. Recurring to the first class of cases, namely, where the contract or transaction is for .the benefit solely of the per^son to whom the duty of diligence is owed — I have stated broadly that the other party is liable for dolus (or intention), and on no other account. But this must be taken with an important qualification. The Roman lawyers con- MODERN CIVILIANS — PROFESSOR ERSKINE. "9 sidered culpa lata (i.e., great or gross negligence) equivalent to dolus : not that (as Austin seems to suppose, p. 441, &c.) they confounded the state of mind denoted by the word dolus (intention) with that indicated by culpa (negligence); but, by a convenient fiction, they held a person committing or omitting an act through gross negligence liable as if committing or omitting with intention. [Puchta Institutionem, cclxxviii. ; D. vi. 16. 213, § 2. eod. tit. 226 ; D. xi. 6. 1. § 1 ; D. xvi. 3. 32.] § 6. Substituting culpa lata (or gross negligence) for dolu^ (or intention) we arrive at the three degrees of diligence or negligence formulated by some of the modern civilians, and adopted by Professor Erskine in his great treatise on the ]aw of Scotland. Erskine states the principle as follows : — " What degree of negligence throws the blame Euies as stated , I ,• , 1 1 • ty modern upon any party contracting, so as to make him civilians, and liable for the damage sustained by the other party ? by p^rofesoT This the Romans have settled by the following general rules : — Where the contract is entered into for the benefit of both parties, each contractor is bound to employ a middle sort of diligence, such as a man of ordinary discretion uses in his afiairs ; the opposite of which is called culpa levis, or simply culpa. Where only one of the two parties is bene- fited by it, such party is bound in the degree of diligence by which one of the most consummate 10 THE LAW OF NEGLIGENCE. prudence 'conducts himself; the neglect of which is called culpa levissima ; and the other party who is no gainer by the contract is not accountable for any proper diligence, he is liable only de dolo vel lata culpa ; i.e. for dole [D. xiii. 6. 5. § 2, eod. tit. 18 p.] or for gross omissions which the law con- strues to be dole. [D. l. 16. 226.] Where one bestows less care on the subject of any contract which requires an exuberant trust than he is known to employ in his own concerns, it is ac- counted dole, though the diligence he hath actually employed be as exact as a man of ordinary prudence would have used. [D. xvi. 3. 32.] These equit- able rules have been adopted by us, and by most other ciYilised states ; and agreeably thereto the borrower in commodate must be exactly careful of the subject lent, while in his own possession, since he alone has the whole profit arising from the contract. Cases are figured in the Roman law where that contract may be formed for the sole advantage of the lender ; in all of which the bor- rower is liable barely de dolo. [D. xiii. 6. 5, § 10.] But most of the cases there stated do not constitute the proper subject of commodate, which is always gratuitous on the part of the lender. [Inst. iii. 14, § 2.]" Reasons of § 7. It wiU be easily seen by comparison, that the ilnguagf the rules stated by Erskine are virtually identical jurists!' ^^^'^ with those which I stated at the outset as the rules ROMAN LAW — MANDATUM. 11 of the Roman law. I myself prefer to adhere exactly to the language of the classic jurists them- selves, which savours of their great practical ex- perience, and which will be found singularly to harmonise with the modern decisions of our own Courts. Indeed our modern decisions even more than the learned discourses of Holt and Sir W. Jones (to be touched on presently) reflect the lan- guage and modes of thought of the classic jurists. § 8. To the general rules above laid down there Notable excep- . i ■, .. , ., . . , tion to general is one notable exception, and it is one curiously rules in case of illustrative of the exact business habits of the ancient Eoman. In the transaction oi mandatum (mandate) the benefit may be on the side of either party solely, or it may be common to both. But in mandate the degree of care required from the person undertaking the commission does not depend upon the benefit. The law says : If you undertake to do a thing, you must do it. Neither the cir- cumstance of the service being gratuitous, nor any careless habits in which you are accustomed to indulge in your own affairs, will excuse you for carelessness in business which is another's. [0. iv. 35. 11, 13.] It was your own choice to undertake it, and if you had not done so the mandant might have done it himself, or found some one else to do it. [Inst. III. 26. 11.] The argument which holds in partnership will not apply here. It is always a matter of choice whether one will take a partner 12 THE LAW OF NEGLIGBlirCE. or no ; and if he decide on taking a partner, it is in his choice whom to take. But the case is different in regard to mandate. A person may- have business which must be done, and the choice of commissioners may be limited. The case is still Negotiorum stronger with regard to negotiorum gestio. Here A. finding that B.'s concerns in his absence require looking after, without any mandate from A. under- takes to manage the affair. In this case A. will have a claim against B. for all disbursements. But on the other hand A. is bound, even -more stringently than in the ordinary case of mandate, to give exact diligence. [D. iii. 5. 6, § 12, eod. tit. 11 ; D. L. 17. 23.] It has indeed been said that in certain cases of urgency, where a friend interposes as negotiorum gestor to prevent imminent loss, he will only be liable for dolus. [D. iii. 5. 3, eod. tit. 9.] But on the other hand it has been said that he is even liable for casus, if he should, on behalf of the absent, have commenced some novel and unwonted business. [D. iii. 5.'11. 22.] The amount of care demanded varies, in fact, with the circumstances^ and especially with the kind of necessity there was for interposition. [C. ii. 19. 20.] Conception of § 9, Before applying these principles to the Roman and in Euglisli law I must advcrt to a difference between ng IS aws. ^Y^^ Roman law and our own in their conceptions of contract. ROMAN AND ENGLISH LAW. 13 The Roman law classified obligations according to Roman ciassi- 1,1,1 . 7 , , fication of whether they arise ex contractu or ex delicto ; a obligations. division which, from its manifest imperfection, —ea; (^eiioio. they were obliged to supplement by arranging the remaining obligations by some fancied analogy to either. Hence the division adopted by the Insti- tutes of Justinian : ex contractu — qua^i ex con- tractu ', ex maleficio — quasi ex malefido. The Those ex cm- . 1 . , . , . tractu sub- obligations which arise ex contractu they again divided, subdivide according to the different modes of completing or evidencing the contract, namely, whether Re, Verbis, Literis, or Consensu^ and these subdivisions are again further analysed into the different species of contracts which compose them, as follows : — Mutuum Commodatum Depositum Emptio venditio Locatio conductio Societas Mandatum Verbis, depending for their effect on a legal solemnity, like deeds under seal with us. Literis, contracts which (like those under Sta- tute of Frauds with us) must be made or evidenced by writing. The English law makes no attempt to classify English law. obligations arising out of contract, but contem- viewed under plates all contracts as moulded on a single type ; promise for" consideration. Re Consensu nard. 14 THE LAW OP NEGLIGENCE. namely, a promise grounded on a consideration. Where obligation is contracted by deed, considera- tion is presumed. But in other cases, the question whether or not a contract is enforceable by law, generally resolves itself into the question whether or not the promise to be enforced is grounded upon English Equity a Qood legal consideration. The language used same effect. r, -,• -i • i • -\ j. tc amongst English equity lawyers is somewnat dii- ferent, but comes, in effect, to the same thing. " An agreement binds the conscience," but " equity will not interfere in favour of a volunteer." T. Ber- § 10. In the celebrated case of Coggs v. Bernard (Sm. L. Ca. vol. i. p. 177) the decision amounted to this : that the confidence induced by under- taking any service for another is a suflScient legal consideration to create a duty in the performance of it. And accordingly it was held a good ground of action, that B. (as the declaration stated) under- took safely and securely to carry and lay down certain casks of brandy, and that by B.'s negli- gence one of the casks was staved ; although it was not alleged that B. was a common carrier, nor averred that he was to have anything for his pains. Coggs V. Ber- ^ Now accordiug to the Eoman law, this would ■case of man- have been simply a case of mandate; and by that law the person undertaking the mandate was liable for culpa. And the only difference between the Eoman law and the English upon the point USE OF "gross negligence" RECTIFIED, 15 consists in this : that in ours the conclusion is reached by the fiction of a consideration, which in the Roman law was unnecessary. The case of Coggs V. Bernard was long celebrated in West- minster Hall for the judgment of C. J. Holt, who^ under colour of citing Bracton, introduced a learned discourse on the doctrine of the civil law ; and enumerated six kinds of bailment, and the rules, founded on the civil law, applicable to each. I may observe that bailment is a technical term oi Bailment. English law signifying the delivery of a thing by the owner upon a contract involving some duty in the keeping of it at the hands of the other. The case of Coggs v. Bernard is also notable as su- w. Jones' being the peg upon which Sir W. Jones hung his of Siment!' able and scholarly treatise on the law of bailment. This judgment of Holt, and the treatise of Sir W. Jones, have since been considered the leading au- thorities in the law of England upon this subject. § 11. While adverting to these authorities I Confusion must make this observation (a), that although iish lawyers both 0. J. Holt and Sir W. Jones follow the cation of the Roman law in excepting mandate from the ordi- negligence. nary rule, by which responsibility correlates with benefit, the necessity for this exception has not always been perceived by the English lawyers (a) These remarks are re- Opperiheim v. White Lion Gom- ferred to with approval by the jaany, L. K. 6 C. P. 521. (C. P. late Mr. Justice Willes in June, 1871.) i6 THE LAW OP NEGLIGENCE. who followed them. The result has been a curious ambiguity in their use of the term gross negligence. Imagining that, to make the gratuitous commis- sioner liable, a case of gross negligence must be established, they have applied the terms " gross negligence," " crassa negligentia," " culpa lata" to mere want of the skill or care promised. For instance, it has been held that a person employed on account of the skill of a particular kind which he professes, is liable, although acting gratuitously, if he fail to bring such skill as may reasonably be expected from his profession. In order to harmo- nize the case with the general rules of bailment, these lawyers thought it necessary to term such failure in skill gross negligence ; and this misuse of the term gross negligence has even been imported into cases of contract for mutual benefit, where. there is not the shadow of an excuse for such language. This absurd and misleading use of words has given fair occasion for the remark that gross negligence is only ordinary negligence with a vituperative epithet (1 Sm. L. Ca. 196, Grill v. Genl. Iron Screw Collier Co., L. E. 1 C. P. 612). The truth is, that however confused their language, the instinct of English lawyers has led them practi- cally to adopt the conclusion arrived at by the Roman law, so that except in the case of common carriers (who have peculiar liabilities of their own as will presently be seen) there is no distinction in law between the duty implied by mandate and OBLIGATIONS EX CONTRACTU — EX DELICTO. 17 that implied by work done for hire. Or if there be any difference it is merely this, that a jury may if they please, in acquitting from negligence, take into account the gratuitous nature of the service. [See cases commented on in Smith, L, Ca. vol. i. pp. 193-196.] I must while upon this subject further observe, that having through the associa- tion of ideas above referred to imported the ex- pression " gross negligence " into cases of ordinary contract, they then rationalised upon the words gross, &c., explaining them to mean considerable or palpable as opposed to slight or merely construc- tive negligence. I shall afterwards revert to this subject (§§ 76, 85, 115, infra). In the mean- time note that, when we come upon the teriiis gross negligence, &c., in English law, it must be marked whether they are used in the sense of culpa lata as employed by the Roman lawyers, or merely in the sense of considerable or palpable negligence. § 12. I have another observation to make in preparation for the ensuing analysis of cases upon the subject of negligence. In laying down the above rules the Roman lawyers contemplate only obligations arising out of contract. And in this they are followed both by C. J. Holt and Sir W. Jones. . But the principle embodied in these rules extends Extension of to cases which do not arise out of contract, This to^oSgatfons the Roman lawyers recognised as we have seen in ^fmntr^tu. 18 THE LAW OP NBGLIGElsrCB. the case of damage under the lex Aquilia. But this extension of the principle is obscured by the sharp line of demarcation which they drew between obli- gations arising ex contractu, and those which arise ex delicto — a distinction which is still more marked in the language of English lawyers, who are accustomed to consider actions arising out of torts (wrongs) as a class apart altogether from those which arise out of contract. But this distinction is illogical. To speak correctly, all actions have their legal ground in wrong. For all must arise upon the breach, actual or apprehended, of some duty. And although it may be useful to distin- guish injuries or breaches of duty, according to whether the primary duty (that is the duty broken) is imposed by contract or not imposed by contract, it is not logical in this sense to oppose delict to con- tract. For there are many duties which are not imposed by contract, and yet do not arise from delict. Such for instance are all the duties arising from the domestic and personal relations. Such is the duty of restitution where money has been paid in the mistaken belief of its being owed. Such duties are by Lord Stair happily distinguished from those which arise out of contract, and are by him classed under the name of obediential obligations — duties which are laid upon us by the will of God, and not through our own engagement or consent. Another set of duties which have always puzzled those who try to class all obligations as arising TORT AND CONTRACT — LORD CAMPBELLS ACT. 19 either ex contractu or ex delicto, are those arising from possession : the duty of the occupier to keep his premises in safe repair, &c. § 13. The distinction in Enghsh law between Actions actions founded on contract and those foundqd on tort, and on tort rests upon no intelligible principle ; and it is now much less important than formerly (a). The only effect of this distinction which still Lord Camp- exists, is the question whether or not, apart from the provisions of Lord Campbell's Act, the action survives. To explain this it is necessary here briefly to refer to the Act just mentioned. (a) Besides the questions which used to arise in the time of strict technical plead- ing, and which became unim- portant after the G. L. P. Acts, there were questions of costs which up to a very recent date were considered to turn upon the technical question whether an action was founded on con- tract or on tort. These arose under the County Courts Acts ; the latest being 30 & 31 Vict, c. 142, s. 5, which disentitled the plaintifif to the costs of an action in the superior Courts if he recovered a sum not ex- ceeding £20 if the action is founded on contract, or £10 if founded on tort. According to the principle of the decision of the House of Lords in Garnett V. Bradley [3 App. Cas. 944] the provisions of this section are now understood to be super- seded by the 55 th Order under the Judicature Acts. The pre- vious decisions under this sec- tion of the County Courts Act were to the effect of holding every injury, not being the direct breach of an express contract, to be a tort. [Pon- tifex V. Midland By. Co., 3 C. P. D. 23; Fleming v. Man- chester By. Co., 26 W. E. 741 ; Bryant v. Herbert, 3 C. P. D. 189, reversed by C. A. 2 July, 1878. It seems doubtful whether Baylis v. Lintott, L. E. 8 C. P. 345, can be reconciled with the other decisions.] C 2 20 THE LAW OP NEGLIGENCE, By the common law of England an action in tort, and tlie cause of action so far as founded on tort, dies witli the injured person : and it lias been laid down by authority that by the common law the death of a human being could not be com- plained of as an injury by any one in a civil Court. \_Baker v. Bolton, 1 Camp. 493 ; and see Osborn v. Gillett, L. R. 8 Ex. 88.] To remedy this, the Act 9 & 10 Yict. c. 93 (commonly called Lord Camp- bell's Act) was passed, so as to enable the executor or administrator of a deceased person to recover for the benefit of the wife, husband, parent, or child of the deceased, damages from the person who by his wrongful act, neglect, or default, had caused the death. The Act was suggested by the practice of the Scotch Courts, which in such cases gave a remedy formerly known as an action of assythement, in the Justiciary Court, an action which was gradually superseded by an ordinary action in the Court of Session. [See Eisten v. N. B. Ry. Co., 8 Macph. 980 ; Greenhorn v. Addie, 17 D. 860.] By 27 & 28 Yict. c. 115, the remedy given by Lord Campbell's Act is extended so as to admit of the interested persons themselves suing after the lapse of six months, if the executor or adminis- trator shall not then have commenced an action. It has been held that, apart from Lord Camp- bell's Act, the executrix of an injured passenger on a railway may recover, in an action for breach of contract against the railway company, the DEBTS PROVEABLE — "OTHERWISE THAN " BY CONTRACT. 21 damage to the personal estate of the passenger arising in his lifetime from medical expenses, and loss occasioned by his inability to attend to busi- ness. [JBradshaw v. Lane. ^ York Ey. Co., L. E. 10 C. P. 18 9. J And it has been held that the cause of action thus laid upon contract is so distinct from that in the action under Lord Campbell's Act, that an admission in an action under the Act does not operate as an estoppel in the action upon the contract. [Leggott v. G. N. By, Co., 26 W. R. 784j Where tbere is no relation by way of con- tract between the parties at all, the cause of action is destroyed, and the action, if commenced, abates and cannot be revived. [Hemming v. Batchelor, L. R. 10 Ex. 54.] The principles on which the amount of damage may be assessed, having regard to the probable duration of life and the use of tables, sucb as tbe " Carlisle tables," for the pur- pose, are discussed in tbe case of Rowley v. L. ^ N. W. By. Co., L. R. 8 Ex. 221. The principle seems to be tbat every element may be taken into consideration, and the whole left to the jury. I am not aware of any other consequence, which Liabilities for is now important, of the technical^ distinction be- damages , . , , -, J , mi • arising " other- tween actions on contract and on tort, ihere is, wise than by , p ,1 111 reason of however, a consequence oi the cognate but more contract," not logical distinction whether a liability arises or does bankruptcy. not arise " otherwise than by reason of a contract." By s. 31 of the Bankruptcy Act, 1869, it is enacted that " demands in the nature of unliqui- 22 THE LAW OF NEGLIGENCE. dated damages arising otherwise than by reason of a contract or promise shall not be provable in bankruptcy," and the section then proceeds to enact in the most comprehensive language that all other liabilities shall be debts provable in bank- ruptcy. The language of this section seems ex- pressly designed to comprise in the category of debts provable all the cases arising out of an implied contract, which have given rise to the difficulties under the section of the County Court Act mentioned in the note, p. 1 9, supra ; and I have no doubt that in all such cases, such for instance as the break down of a private toll bridge, where the question might become very important, the liability (except for damages under Lord Camp- bell's Act) would be a debt provable in bankruptcy. Obligations § 14. If I wcre to range the obligations which [ng to degree are the subject of this essay according to the demanded. degree of Care to which a person is bound, or which, to use the favourite fiction applied by English law to a large class of cases, he promises, I should adopt the following order. The obligation to answer for the safety of a subject is either : — 1. Absolute — in the nature of insurance. This can only be by express contract \_Ford v. Cotes- worth, L. E. 5 Q. B. 544 ; Robinson v. Davidson, L. R. 6 Ex. 269 ; River Wear Commissioners v. Adamson ^- Others, House of Lords, July 27, 1877, 26 W. E. 217, overruling the decision of the OBLIGATIONS OF INDEMNITY CLASSIFIED. 23 Queen's Bencli reported in a parallel case, Dennis V. Tovell, L. R. 8 Q. B. 10]; or where one of the parties is in mora, for instance where in case of a sale a change of ownership is only not effected by- reason of the default of one of the parties^ who is then liable for casus, even though the property is in the other. \_Martineau v. Kitching (^per Black- burn), L. R, 7 Q. B. 456.] The obligations of insurance, properly so called, or of indemnity against casus, are not within the scope of this essay. It is enough to say here that proof of casus exonerates from liability for negligence which would prima fade be inferred from the circum- stances. [See The Virgo, 25 "W. R. 397; Eiver Wear Commissioners, supra, cit. ; Readhead v. Mid- land Ry. Co., p. 36, post; Doward v. Lindsay, L. R. 5 P. 0. Ap. 338 (case of drifting from moor- ings in a storm, and anchor fouling by accident).] 2. In the nature of warranty — (a) Against everything except the act of God and the Queen's enemies; «.^., com- mon carriers. This is in fact a kind of limited insurance, (b) That reasonable care is taken, &c. ; e.g., carriers of passen- gers by rapid con- veyance. Culpa levissima. or Exacta diligentia. 24 THE LAW OP NEGLIGENCE. Indemnity against the consequences of ordi- nary negligence. Indemnity against tlie consequences of wilful wrong, or such gross negligence as the law presumes equivalent thereto. Culpa. Dolus vel culpa lata. Explanation of § 15. It wiU be Convenient to some extent to in this essay follow the Order above indicated, but I shall in the sequel consider the liabilities which I have pro- posed to treat, without further reference to any question as to an implied contract, and without sharply dividing the cases where the primary duty does, and where it does not arise from contract. Thus the breaches of duty which the Roman law dealt with under the lea; Aquilia above referred to, will be treated of in the same comprehensive sec- tion with the obligations imposed by English law, under the custom of the realm, upon common carriers, and the somewhat lighter, though still onerous, duties which modern decisions have im- posed upon carriers of passengers by rapid con- veyance. I do not pretend that the degrees of care re- quired in the different relations of life are capable being ranged in classes by any sharp distinctions, nor do I think that the modern civilians who have spoken of the different degrees of diligence above EXACTA DILIGENT! A — COMMODATUM. 25 mentioned, have (speaking generally) supposed that an exhaustive and sharply defined classification of liabilities for negligence could be founded on such degrees of diligence. But the classical phrases I have adverted to suggest a convenient order of treating my subject, and I shall in the sequel con- sider, 1st, cases where slight negligence is sufficient to infer liability; 2ndly, where ordinary negli- gence is suflScient ; 3rdly, where the culpa lata which the Roman lawyers held equivalent to dolus is necessary to infer liability. I. Exacta diligmtia-^ Culpa levissima. § 16. First, then, I shall consider the circum- i. slight neg- stances under which slight negligence is suflScient dent "to^Wer to infer liability. "^^-''^y- (a) The typical species of this genus is commo- („) Commoda- datum, or gratuitous loan. This transaction being for the sole benefit of the borrower, he is liable for very slight negligence — everything (as the Roman lawyers expressed it) short of casus. But the reason of this rule applies to a much wider and more important class of cases. It em- braces that responsibility to strangers under which every one lies while lawfully using his own pro- perty or pursuing his own private advantage or pleasure. This is the meaning of the maxim " Sic utere tuo ut alienum non laedas." The principle of this responsibility was applied by the Roman 26 EXACT DILIGENCE. lawyers very widely in their expositions of the lex Aquila de damno ; and the same principle is within somewhat narrower limits asserted in the English law. I do not say that in all these cases the care or diligence required must necessarily be described by superlatiyes. But I think it may generally be affirmed that in such cases the amount of care required is greater and the degree of negligence deemed inexcusable is less than in ordinary cases of contract. (;S) Occupier § 17. (/S) It is, for instancc, the duty of every of buildings, . . .• x- i j &c., bound to one in the possession or occupation oi lands or keep them in ^ „ ^, ^ i i • ■ ■ i safe repair. buildmgs to take care that bis premises are m such condition and to conduct operations thereon in such manner as is consistent with safety to all persons being where they have right to be. [ Tarry V. Ashton, L. R. 1 Q. B. D. 414.] The person in actual possession is always liable, and prima facie is alone liable. The landlord, having the possessio civilis, is also liable if the damage arises from his nonfeasance, or misfeasance, and in such a case the injured person has the option of suing either the landlord or the tenant. There appear to be only two ways in which the liability can be brought home to the landlord, namely, first, if he has entered into an express contract with his tenant to repair ; and secondly, if he has let the premises in a dangerous state. But in the latter case he is exonerated if the tenant has entered OCCUPIER OP DANGEROUS TENEMENT. 27 into an express covenant to repair. [Hadley v. Taylor, L. E. 1 C. P. 53 ; Todd v. Flight, 9 0. B. (N.S.) 377 ; Nelson v. Liverpool Brewery Company, 2 C. P. D. 311 ; Pretty v. Bickmore, L. R. 8 C. P. 401 ; Gwinnell v. Earner, L. R. 10 0. P. 658.] In Scotland where houses are often let to families in " flats " with a " common stair," and where the landlord undertakes the duty of keeping the common stair in tenantable condition, he has been held responsible for the death of a child invited on the premises by one of the tenants in order to go a message, and who fell through a place where there was a missing rail of which the landlord had for months past had notice. [McMartin v. Hannay, Court of Session, 3rd series, vol. x. p. 411.] The duty here spoken of is an absolute duty, that is to say, a duty to the public at largp ; and if a case of palpable danger were made out, the occupier of the premises or author of the opera- tions would doubtless be liable to an Indictment or Information [Reg. v. Stevens, L. R. 1 Q. B. 702], just as in any other case of nuisance to the public. And it would be no answer to such an Indictment or Information to say that the danger- ous state of the premises was caused by acts of his servants or workmen contrary to his general orders, or even by acts of persons over whom he had no control of any kind. \_Reg. v. Stevens, supra; Att.-Gen. v. Bradford Navigation, 35 L. J. (Ch.) 619.] Danger to the public is, however, 28 EXACT DILI&ElSrCE. then commonly first perceived when some one is damaged, and therefore the question of negligence generally comes into a court of law in an action for the injury. As an instance, I will take the following case from the Law Reports : — § 18. In an action for negligence brought against a railway company for not keeping in proper repair the bridge over a highway crossed by their line, in consequence of which a brick fell and damaged the plaintiff: The state of facts was this : — The bridge was an iron-girder bridge resting on one side on iron piers, and on the other on a per- pendicular brick wall with pilasters. The brick fell from the top of one of the pilasters, where one of the girders rested on the pilaster. A train had passed just previously. On this evidence the jury found a verdict for the plaintiff. It was held that the verdict was justified by the evidence. It was the duty of the defendants to use all reasonable diligence and care in keeping the bridge in proper repair. The unusual occurrence of a brick falling was prima facie evidence of the want of due dili- gence ; and it lay on the defendants to rebut this, by showing that the bridge had been examined by proper persons from time to time. \_Kearney v. L. B. ^ S. a Ry., June 15, 1870 ; L. R. 5 Q. B. 411 ; affirmed by the Exchequer Chamber, June 15, 1871, L. R. 6 Q. B. 759.] "Reasonable" is, of OPERATIONS DANGEROUSLY CONDUCTED. course, a word of shifting import, but it is impos- sible to resist the inference that what the judges here demand is what the Eoman lawyers would have called exacta diligentia. § 19. The case of Scott v. London Dock Com- pany [3 H. & C. 596, & 34 L. J. Ex. 17, 22] was a case in which a custom-house officer upon his lawful business was injured by the fall of sxigar- bags from a lift over a door on the defendant's premises. No explanation was given of the cause of the occurrence. The fact was, however, held evidence of negligence. It will be observed that the statutes for the protection of the revenue give to custom-house officers the right of entry to pre- mises where occupations of certain kinds are carried on. The occupiers of the premises there- fore hold them subject to the right of entry of the revenue officers, just as any one having a house under which is a public passage, holds the premises subject to the right of the public to pass. Con- sequently this was a case very like that of the last, namely, that of a person passing along a public road under the railway bridge : and it seems that in both cases liability would be inferred from something less than ordinary negligence. For had the question been whether there was negli- gence of the order commonly called ordinary negli- gence I think that some positive evidence as to the cause of the occurrence would have been 29 30 EXACT DILIGENCE. required (a). The inference seems to be that, in a question witli strangers being where they have right, every person is bound in exact diligence for the safe repair of his premises and conduct of his operations. Failing such safe repair of premises or conduct of operations, primd facie evidence of negligence may be furnished, in case of resulting damage, by the maxim res ipsa loquitur. [See also Bryne v. Boodle, Nov. 25, 1863, 2 H. & 0. 722 ; Bjiggs v. Oliver, May 1, 1866, 35 L. J. 163. But compare Higgs v. Maynard, 14 W- R. 610, Harri- son and Eutherford, p. 581 (glass falling on plain- tiff's eye from window broken by ladder inside) ; Welfare v. L. df B. Ry. Co., June 3, 1869, L. E.. 4 Q. B. 693 (plank and roll of zinc falling on plaintiff while looking at time-tables at a railway station); Barnes v. Ward, 9 C. B, 392 (unfenced excavation near a public way).] § 20. I have above observed that where an action will lie against the occupier of a dangerous tenement or author of a dangerous 'operation, (a) It appears that on a text. The company were not second trial of this case, the bound absolutely to restrain defendants led evidence ex- their sugar bags fcom falling, plaining how the bags came which would have been an to fall, and got a verdict which obligation in the nature of was not disturbed. [Solicitors' insurance, but to warrant care Journal, Mar. 4, 1871, p. 328.] or diligence for the safe con- This is quite consistent with duct of their operations, the principle laid down in the DIS-REPAIR OP PARISH ROAD. . 31 an indictment, speaking generally, will also lie. It is not, however, true conversely that an action is competent in all cases in which an indictment would lie. There is no action for the breach of an absolute duty where the damage suffered by the individual is merely an inconvenience of the same kind as that suffered by the public generally. [ Winterbottom v. Lord Derby, L. E, 2 Ex. 316.] It has been decided by the Court of Queen's Bench that an action does not lie against a local board under the Public Health Acts for damage to an individual occasioned by dis- repair of a parish road vested in them, and placed by the Act under their management. \_Gibson v. Mayor of Preston, L. E. 5 Q. B. 218. J This appears to be a consequence of the old form of remedy, which only lay by indictment against the inhabit- ants of the parish. It was held that the Act, by transferring the duty of management, did not give individuals a new form of remedy. But it has been decided by the same Court that a local board who were by statute constituted surveyors of high- ways, were liable to an action for misfeasance by the negligence of their servants in leaving a heap of stones in the road without guard or light. [^Foreman v. Mayor, 6fc., of Canterbury, L. E. 6 Q. B. 214, Solicitors' Journal, 1871, p. 595.] And it has been also decided that a local board, by having a sewer under the road vested in them (under ss. 43 and 45 of the Public Health Act, 32 EXACT DILIGENCE. 1848), were liable for damage caused by a grid over the sewer being in a defective state. [ White V. Hindlet/ Local Board, L. R, 10 Q. B. 219.] An ordinary surveyor of a highway does not usually employ his own servants, and, though responsible for personal negligence [Pendlebury v. Greenhalgh, C. A. from Q. B., 1 Q, B. D. 36], is not respon- sible for the servants of the parish or for the negligence of a contractor employed by him. [_Taylor v. Greenhalgh, L. R. 9 Q. B. 487.] This last was a case arising out of the same circum- stance as that of Pendlebury v. Greenhalgh, but the facts as brought before the Court of first instance were incorrect, and the judgment was reversed on the true state of the facts being brought before the Court of Appeal. § 21. To the class of cases now under considera- tion may be referred the liabilities which arise under an obligation, as between adjoining occupiers, for one of them to maintain at all times a sufficient fence. In the case of Lawrence v. Jenkins [L. R. 8 Q. B. 274], the existence of a prescriptive obliga- tion of this kind on the defendant was proved by evidence extending over more than forty years ; and it was held that the obligation was absolute to keep up a sufficient fence at all times, the act of God or vis major only excepted ; and that a gap having been made, and plaintiff's cows getting through and killing themselves with eating leaves RIGHT TO SUPPORT. 33 of a yew felled by a person who had contracted with defendant to buy his timber, the defendant was liable for the loss of the cows. Firth v. Bowl- ing Iron Company [3 C. P. D. 254] was a case arising out of an obligation of one of two tenants under the same landlord, by the terms of his lease, to fence the land in his occupation for the benefit of the lessor and his tenants. And as the obligee fenced his premises with old iron wire, which he allowed to decay and fall to pieces on the adjoining ground, he was held liable for the death of his neighbour's cows who swallowed the pieces with the grass. S 22. A class of cases not necessarily arising Eight to . • 1 n 1 support. from negligence, but allied with the cases of the class now under consideration, are those involving the right of support which one proprietor has from the ground of his neighbour. The principle, according to English law, is that the proprietor has the right to the support of his land in its ordinary state, but not to the support of buildings on it, unless by grant or reservation, express or implied, actual or presumed. If the operations would have caused a subsidence of the ground without a building erected on it, but the damage would then have been inappreciable, there will, speaking generally, be no right of action for damage by subsidence to a new building, although 34 EXACT DILIGENCE. the damage may be considerable. \_Smith v. Thackerah, L. E. 1 C. P. 564.] It bas been decided that tbe presumption arising from enjoyment of tbe grant of an easement to tbe support of build- ings is not assisted by the (so-called) Prescription Act, 2 & 3 Will. IV., c. 71, and that the 2nd section of this Act in no way affects an easement of this nature. [_Angus v. Dalton, 3 Q. B. D. 85.] Such presumption therefore depends on tbe common law ; and on the authorities referred to by Lush, J., in the last cited case, it is clear that the presump- tion arises on proof of enjoyment for twenty years. But not only is the presumption liable to be re- butted, but, according to the decision of the majority in the case last cited (Cockburn, C. J., and Mellor, J., against Lush, J., dissenting in a judg- ment giving very forcible reasons), the surround- ing circumstances shewing that no permission was in fact given or asked for at the time when the altered building was erected, were held sufficient to rebut the presumption. Where negligence in fact is proved in the manner of conducting the excavating operations, the case depends on other considerations. On this point the cases cited on p. 115 of the last-mentioned judgment may be referred to. Where the plaintiff's right of support is invaded and damage ensues, it has been decided by a majority in the Queen's Bench, that the plaintiff may at once sue for and recover damages TRUSTEES OP PUBLIC UNDERTAKINGS. 35 on an estimate of tlie whole future damage likely to ensue from the operations. [_Lamb v. Walker, 3 Q. B. D. 389.J § 23. (y) Where a person or corporation is by (y) Persons statute entrusted with the making and maintenance the mainte- of works, and entitled to demand tolls for the use used by the of those works, there is then a duty upon that tdis!" ^*^'"^ person or corporation to all persons lawfully using the works [Shoebottom v. Egerton, 18 L. T. (N.S.) 889], as well as to the public using bridges or other collateral works which the enabling statute enjoins to be made for their accommodation \_Manley v. St. Helens Canal, Sfc, Co., 2 Hurlst. & N. 840], to take care that the works are con- structed and maintained with reasonable efficiency for the purpose for which they are authorized to be made. And if a person lawfully using the works is damaged through want of care in their construction or maintenance I think that some- thing less than ordinary negligence suffices to make the damage an injury ; or, which is saying the same thing, I think that more than ordinary care in the performance of the statutory duty is demanded from those owing it. This may be illustrated by the case of the Mersey Docks and Harbour Trustees v. Gibbs and others, decided in 1865 in the House of Lords on appeal from the Court of Exchequer Chamber. [Reported L. R. 1 H. of L. 93.] The action was for damage to a D 2 36 EXACT DILIGENCE, ship and cargo caused by the ship grounding upon a bank of mud at the mouth of the dock. At the trial the Chief Baron Pollock directed the jury that, " if the cause of injury was a bank of mud in the dock, and if the defendants by their ser- vants had the means of knowing the state of the dock, and were negligently ignorant of it, they were liable." A bill of exceptions was tendered to this ruling, and the jury having found for the plaintiffs, the question whether the Chief Baron's ruling was right in point of law came before the Exchequer Chamber, and afterwards on appeal to the House of Lords. [7 H. & N. 329 ; L. E. 1 H. ofL. 93.] § 24. It was argued for the defendants that, to establish a case of liability against them, it was not enough that they were proved to have the means of knowledge of the obstruction unless they were also proved to have actual knowledge of the existence and of the dangerous nature of the bank. But this contention did not avail. And it was held to be clear on the authority of the cases cited in the argument (especially that of Parnahy v. Lancaster Canal Company, 11 Ad. & E. 223) that a body incorporated by statute, with the right to levy tolls for the profit of its members, in con- sideration of making and maintaining a dock or a canal, is liable in its corporate capacity to make good to the persons using it any damage occa- TRU8TEKS OF PUBLIC UNDBRTAKINGS. 37 sioned by neglect in not keeping the works in proper repair. But the defendants further claimed exemption from liability on the ground that they were not authorized to receive tolls for their own profit, since by the constitution of the corporation the profi.ts of their undertaking were dedicated to the benefit of the public and of the shipping interest using the docks. It was, however, decided by the unanimous opinion of the learned lords present, following the joint opinion of the consulted judges (delivered by Blackburn, J.), that the circumstances of the profits being thus ultimately applied to public purposes made no difference. The result seems to be that every person or corporation privi- ledged to make and maintain public works, and to levy tolls for the use of them, is bound to use exact diligence in making and maintaining those works so as to be in a reasonable state of efficiency ; that the breach of this duty gives a right of action to any person, being within the scope of the benefit intended by the statute, who is damaged by such breach of duty ; and that the negligence of servants, contractors, and employes of every description causing failure in the performance of these duties may be ■ imputed to the person or cor- poration itself. \_Mersey Docks Trustees, iSfc. v. Gibhs, L. R. 1 H. of L. 93 ; Coe v. Wise, L. E. 1 Q. B. 711 ; Jolliffe v. Wallasey Local Board, L. R. 9 C. P. 62; Virtues. Commissioners of Police of 38 EXACT DILIGENCE. Allon, Court of Session, Dec. 12, 1873 ; Stephen V. Thurso Police Commissioners, Court of Session, 4th series, vol. iii. p. 535.J As to the kind of proof which will exonerate, see Grote v. Chester ^ Holyhead By. Co. [2 Ex. 251]; Hammond\. Vestry of St. Pancras [L. E. 9 C. P. 316]; Thomson v. Greenock Harbour Trustees [Court of Session, 4th series, vol. iii. p. 1194]. § 25, It seems, then, that the position of a person or corporation privileged to make and rhaintain public works and to levy tolls for them, and who has omitted the performance of his duty to make or maintain the works in a reasonable state of efficiency, is very similar to the position of an .occupier having his tenement in a dangerous state. He is unquestionably liable to an Indictment for non-performance of the duty, and he is also liable, as for injury, to the individual affected, in case the threatened danger or mischief result in actual damage. § 26. I have observed that liability under the head now treated is incurred to any person damaged, who is within the scope of the benefit intended by the statute. It is necessary, therefore, to distinguish whether the enactment is conceived in the interest of the public at large or of some class of persons on public grounds, or is merely in the nature of a covenant, e.^.' with the adjoining WATER COMPANIES. 39 owner or occupier. A statutory enactment of the latter class will not ground a remedy in favour of a stranger. \_Manchester, ^^not injure the property of your neighbour, and ) consequently, if filth is created on any man's land, then, in the quaint language of the report in Salk. 361, ' he whose dirt it is must keep it that it may not trespass.' " In Nichols v. Marsland [L. R. 10 Ex. 255] there was an artificial lake, and the damage occurred from the mere overflow after an exceptionally heavy fall of rain. The jury found that there was no negKgence, and that the rainfall amounted to vis major. The case was distinguished from Ry- lands V. Fletcher, and the defendant excused, and the decision was affirmed by the Court of Appeal [2 Ex.D, 1]. This was merely an application of the general principle of excuse by vis major or the act of God already adverted to, and which is fully 60 EXACT DILIGENCE. considered in the case of the Eiver Wear Commis- sioners before the ultimate Court of Appeal [26 W.E. 217]. Where an accumulation of water is for the bene- fit of both parties, or incidental to an artificial erection of which both parties are tenants, e. g. tenants of an upper and lower storey in the same house, the principle of Fletcher v. Hylands does not apply, and one of the tenants would be answerable to the other only for negligence in the ordinary sense of the term. \_Carstairs v. Taylor, L. E. 6 Ex. 217; Ross v. Fedden, L. E. 7 Q. B. 661.] In Wilson v. Newberry, a case on demurrer [L. R. 7 Q. B. 31], it was held that the mere alle- gation that the defendant was possessed of yew trees, the clippings of which he knew to be poison- ous, and did not prevent the clippings of his yew trees being placed on land where the plaintiff's horses were poisoned by them, was not suflScient to sustain an action. The clippings were not things having themselves any tendency to escape, and might have been placed on the neighbour's land by a stranger ; so that there is no analogy between the case and the class of cases of which Fletcher v. Bylands is the type. § 36. On the same principle with Fletcher v. Bylands, the Festiniog Railway Company were held liable to one Jones, whose haystack was burnt down — ignited by sparks from a locomotive engine used STEAM ENGINE WITHOUT STATUTORY POWER. 51 by the company, who had no express statutory power to use such an engine. It was proved by the defendants that all reasonable precautions had been taken to prevent the emission of sparks. They were, nevertheless, held liable on the ground that the locomotive was a dangerous machine- to be brought and used by the defendants upon their premises at their peril of the consequences in case of damage to others. [_Jones v. Festiniog Ry. Co., L. E. 3 Q. B. 733.] The case would have been different if the company had been authorized by statute to use the locomotive ; and in that case they would have been merely bound to take all reasonable precautions, and, having done so, the statutory authority would have been their warrant, and any loss caused by the use of the locomotive would have been damnum absque injuria. [ Vaughan V. Taff Vale Ry. Co., 5 H. & N. 685 ; Hammersmith Ry. Co. V. Brand, L, E. 4 H. of L. 171 ; Cracknell V. Mayor and Corporation of Thetford, L. E. 4 C. P. 629 ; Thompson v. Hill, L. E. 5 C. P. 564 ; City of Glasgow Union Ry. Co. v. Hunter, L. E. 2 H. L. Ap. Sc, 78 ; Dunn v. Birmingham Canal Co., L. E. 8 Q. B. 42.J The company is however bound not only to use all reasonable means which they pos- sess at common law, but also to make reasonable use of all the powers which they possess by their enabling statute to do their work in such a manner as shall be effective, without damaging the E 2 52 EXACT DILIGENCE. property of others. [Geddis v. Proprietors of Bonn Reservoir, 3 App. Cas. 430.] § 37. The class of cases of which Fletcher v. Ry- lands is the type, are instances of the extreme degree of responsibility. But in all the cases I have hitherto commented on it is clear that some- thing less than mere negligence, in the ordinary sense, will render the party liable ; and, on the other hand, there is a duty towards the stranger of something more than ordinary care. This, the Roman lawyers would have expressed by saying " prcestat exactam diligentiam •" or, in the language of the modern civilians, he is liable for culpa levis- sima — everything but casus. We express this by saying that the circumstance implies a duty to re- strain the thing ; the fact of its breaking out raises a presumption of neglect of duty ; and nothing will override that presumption except proof of con- tributory negligence on the part of the defendant, or proof of some of those occurrences which are termed by English lawyers the " act of God." "Whether even such inevitable catastrophe will exonerate in a case where aggravation of its injurious consequences was the natural result of the operations carried on by the defendant, may well be questioned. I am inclined to think that in such a case he would not be exonerated. Dangerous and § 38. The liability incurred by a person keeping tame animal. DANGEROUS AND TAME ANIMALS — DOGS. 53 or harbouring a dangerous animal (a) is similar in principle to that in the cases of which Fletcher v. Rylands is the type. No question can well arise in the case of those animals which we are not accustomed to consider tame. But the domestic dog has occasioned many legal disputes ; and the presumption by the common law of England is that he is tame, and therefore the owner is not held responsible, unless the dog in question is by dispo- sition ferocious, and reasonable ground be shewn for presuming that this ferocious character is known to the owner. This is technically called proof of the " scienter" from the terms anciently used in pleading. But this presumption was carried to an absurd extent, when the wolfish nature of the creature was deemed so completely extinguished that it was against his nature to worry sheep and cattle. And it astonished the Scotch sheep-farmers when this doctrine was brought to their notice by the decision of a Scotch Appeal by Lords Brougham and Cranworth [^Fleming v. Orr, 2 Macq. 14], who applied the Dogs. (a) The liability for trespass negligence (ordinary) or sa'en- of tame animals is similar in ter. [Cooke v. Waring, 2 principle. Liability, is unqua- Hurlst. & C. 332 (scabby lified for such damage caused sheep) ; Bead v. Edwardes, 17 by the trespass, as may reason- C. B. (N.S.) 260 (dogs — dam- ably be expected from the age to game).] The American nature of the animal (e.g. the rule as to damage from tres- eatage of oxen or sheep), but passing animals seems much not further extended without more severe — Shearman, § 186. 54 EXACT DILIGENCE. rule to Scotland, so that, as Lord Cockbum ob- served, " every dog became entitled to at least one worry." The consequence was that an Act (26 & 27 Vict. c. 100) was soon afterwards passed (for Scotland), declaring it unnecessary in an action against the owner of the dog to prove a previous propensity to injure sheep or cattle (a). An Act to a similar purport was afterwards passed for England (28 & 29 Vict. c. 60). It has been decided by the Queen's Bench that horses are, under the word " cattle," within the protection of this Act. [ Wright v. Pearson, June 25, 1869.J A person is not guilty of "harbour- ing " a strange ferocious dog if he uses reasonable efforts to drive it off his premises. \_Smith v. Great Eastern Ry. Co., L. E. 2 0. P. l.J Attempts to bite, if brought to the knowledge of the owner, are evidence of the dog's dangerous character. [ Worth V. Gilling, L. E. 2 C. P. 1.] A dog having four years ago bitten a boy, and defendant's wife having notice, has been held evidence to go to a jury of the dog's dangerous character and defendant's scienter. \_Gladman v. Johnson, 15 W. E. 313 O.P.] Knowledge of a servant appointed by the the master to keep a dog is imputable to the master. \_Baldwin v. Casella, L. E. 7 Ex. 3 2 5. J It has been held in a Scotch case, that the defendant's (a) As a late case of the of Session, Feb. 18, 1870, 3rd application of this Act, see series, vol. viii., p. 570. M'Jntyre v. Carmichael, Court DAKGEROUS AND TAME ANIMALS. 55 servant having tied up a Spanish bloodhound in a place accessible to the public, and the defendant having said to some one, " You need not be afraid of the dog, if you call him by his name, he will not harm anybody," was evidence of knowledge of a ferocious disposition in the dog. [^Renwick v. Von Rothberg, Court of Session, 4th series, vol. ii., p. 855.] The necessity of proof of scienter in the case of an animal not ordinarily dangerous, does not extend to a case of contract where there may be an implied warranty. In the case of Smith v. Cook [1 Q. B. D. 79], under a contract for agistment, the defendant (who was the agister) had put the plaintiffs horse to feed amongst his heifers. There was a bull feeding on the adjoining marshes which (as the defendant knew) had sometimes got in among the heifers, but there was no evidence that the defendant knew the bull to be of a ferocious disposition. One morning the horse was found dead, gored by a bull. The judge left it to the jury to say whether there was a want of reasonable care and the jury found there was. The Court refused to disturb the verdict. § 39. In referring to the Festiniog Eailway case Exception, (the case of damage by sparks from a locomotive), caused by acts I observed that the question would have assumed express power a different aspect if the company had employed f^i^hl^^Wa the locomotive engine under express statutory P""^p°^'^^" authority. \_RexY. Pearse, 4 B. & Ad. 30 ; Vaiujhan 56 EXACT DILIGENCE — EXCEPTIONS V. Taff Ry. Co. 5 H. & N. 679.] The express statutory power alters the legal character of the act. Instead of being a use of property made by the owner at his peril, although not prohibited by law, it becomes a legitimate use for public purposes, and with public sanction and allowance ; and in such a case aifirmative evidence of negligence, beyond the mere fact of sparks being emitted from the engine, would be necessary to infer liability. \_Aldridge v. G. W. Ry. Co., 3 Man. & G. 523.] So a case which would otherwise have been similar to Rylands v. Fletcher, was distinguished on the ground of the authority given by Act of Parliament, for public purposes, to create the accumulation of water. [Dunn V. Birmingham Canal Co., L. R. 7 Q. B. 244.] Where a person under a statutory enactment is empowered to break up a road for a temporary purpose, it lies upon him to reinstate it [^Glover V. East London Waterworks Co., C. P., 16 W. R. 310] ; but not to answer for the consequence of the subsequent natural subsidence of the soil. [Hyams v. Webster, L. R. 4 Q. B. 138 (Ex. Ch.).J Level crossings § 40. The statutoiy authority by which a rail- way crosses a road at a level confers an immunity which is conditional upon the statutory precautions being complied with. If the road be a turnpike, statute labour, or other public carriage road, the Public G-eneral Acts relating to railways provide STATUTORY AUTHORITY — LEVEL CROSSINGS. 57 that gates shall be used at such level crossings, under the charge of proper persons to open and shut them [5 & 6 Wm. lY., c. 50 ; 2 & 3 Vict. c. 45, s. 1 ; 5 & 6 Vict. c. 55, s. 9 ; 8 & 9 Vict. c. 20, s. 47], and the last statute enacts that, unless the Board of Trade by special order direct otherwise, the gates are to be kept constantly closed on both sides of the railway, except when horses, carriages, &c., have to cross. In such a crossing it has been held by the Court of Exchequer that the leaving open one of the gates was an intimation on the part of the company that the line was safe, and a jury was held justified in finding a verdict for the plaintiff (a foot passenger who had been knocked down by the Brighton express), on the ground of negligence on the part of the company [Stapley v. L. B. ^ S. a By., L. R. 1 Ex. 21] ; and the prin- ciple has since been affirmed by the Exchequer Chamber and House of Lords, affirming a decision of the Queen's Bench \_WanleHS v. iV. E. Ry. Co., L. R. 6 Q. B. 481, and L. R. 7 H. L. Ap. 12] ; and a railway company has been held liable in a case where a private road came out on one side, through a gate which also served for a level cross- ing by a public carriage-way, and where the gate- keeper, being asked whether the line was safe, said '' Yes, come on." That was held an intimation by the company that the line was safe \Lunt v. Lon- don ^ N. W. Ry. Co., L. R. 1 Q. B. 277.] Where the railway company construct their line 58 EXACT DILIGENCE. across a highway under sanction of an Act of Par- liament there is also an implied duty to keep the line in a proper state for the passage of carriages across the rails. [^Oliver v. N. E. Ry. Co., L. R. 9 Q. B. 409.] By section 61 of the last-mentioned statute (8 & 9 Vict. c. 20) it is enacted that when a railway crosses a public highway other than a public car- riage-way on the level, the company are, if the way is a bridle way, to erect and maintain gates, and if a footway, gates or stiles. When this duty was neglected, and a child of four and a half years old who had been sent on an errand was found, shortly afterwards, lying on the footpath with its foot cut off, this was held to be evidence sufficient to fix the liability on the company, although it was suggested that the child might have strayed down the line from another point. [ Williams v. G. W. By. Co., L. E. 9 Ex. 157.J There is however no duty imposed on the com- pany by any general Act to place a watchman at a level crossing over a public footway, nor at a level crossing over a private carriage-way. Nor does the Act 5 & 6 W. IV., c. 50, apply to a private railway which crosses a road by permission of the road trustees, and is not forced on them by statutory authority. \_MatsonY. Baird, H. L. 5 July, 1878.] And where no duty is expressly imposed by the legislature there is none by the common law, and the question will be simply this : whether, having STATUTORY AUTHORITY — LEVEL CROSSING. 59 regard to the circumstances, the company has been, through their directors or servants, guilty of negli- gence. The omission to place a watchman is not evidence of negligence if the view of the line at the spot is clear. \_StuUey v. L. ^ N. W. Ry. Co , L. R. 1 Ex. 13 ; Walker v. Midland Ry. Co., 14 L. T. (N.S.) 796 ; Cliff v. Midland Ry. Co., L. R. 5 Q. B. 258.] § 41. It has been said by a great authority that the mere failure to perform a self-imposed pre- caution will not constitute actionable negligence (per Willes J., in Skelton v. L. ^ N. W. Ry., L. R. 2 C. P. 636). And it is no evidence of actionable negligence to shew that the company having for- merly been used to employ a gatekeeper, had for years before the accident in question discontinued such practice ; nor that, having obtained powers to divert the road so as to cross the railway by means of a bridge, they had not carried those powers into execution. [ Cliff v. Midland Ry. Co., L. R. 5 Q. B. 258.] The neglect however to use a precaution imposed by statute is evidence of negligence, especially if it appears that the precaution is one generally adopted. So it has been held in case of failure to provide the passenger communication required by 31 & 32 Vict. c. 119, s. 32. \_Blamires V. Lancashire <^ Yorkshire Ry. Co., L. R. 8 Ex. 283 ; and see observations on CotMih v. Steel, p. 40, supra.'\ 60 EXACT DILIGENCE. § 42. Here I must allude to a case whose autho- rity has been much canvassed, the case of Bilbee v. L. ^ Brighton Ry. Co. [18 C. B. (N.S.) 484.] The railway crossed on a level a public carriage and footway at a spot which was particularly dangerous owing to a curve in the line and bridge obstructing the view, so that trains coming in one direction were not seen until very close. There were gates across the carriage-way which were kept locked ; but the footway was protected merely by a swing- gate on either side, no person being there to caution people passing. The plaintiff while using the footway was knocked down by a passing train and damaged. The judge at the trial left it to the jury to say whether or not the company had been guilty of negligence. The jury gave their verdict in favour of the plaintiff, and it was held by the Court that this verdict was warranted by the evi- dence. It is difficult to harmonise Bilbee's case with the other authorities, but it is possible to do so if we suppose the ground of the decision to have been that the company, having chosen to obstruct the view from the crossing by making a bridge close by, are bound to use some extra pre- caution for the safety of the public (see observa- tions in Clifs Case, L. E. 5 Q. B. pp. 263, 264). In agreement with this view it has been held that, on approaching a level crossing at a smoky place on a dark night it would have been a reasonable precaution to whistle, and that the engine-driver's INVITATION TO COME UPON PREMISES. 61 omission to do so was evidence of negligence against the company. \_James v. G. W. Ry. Co., L. E. 2 C. P. 634, note ; Grant v. Caled. Ry. Co., Court of Session, 3rd series, vol. ix. p. 258.] But after the decision of the Exchequer Chamber in Ellis V. G. W. Ry. Co. [L. R. 9 C. P. 551], the omission to whistle cannot be relied on as suffi- cient, where there is nothing to obstruct the view. It has been held evidence of negligence in an engine driver on an engine standing at a level crossing over a road where there was much traffic, unnecessarily to blow off steam from the mudcocks, so as to frighten horses waiting outside the gates. [Manchester, ^c, Ry. Co. v. Fullerton, 14 C. B. (N.S.) 54.] § 43. (0 The same responsibility in regard to (0 Responsi- the safety of his premises which a person owes to pier to persons the public being in places where they have lawful land by inrita- right, he owes to those who, by his invitation, come upon his own premises in pursuit of a matter of common interest to both. I here exclude the case where the relation between the parties is one of contract, and the damage arises from a risk which the sufferer may be presumed to have con- templated as a risk incident to the contract (a). (a) E. g. Seymour v. Mad- hole in the floor between the dox, 16 Q. B. 326. (Super- dressing-room and stage, al- numerary employed at theatre, leged to have been insuffi- where there was an unfeneed ciently lighted.) A similar 62 EXACT DILIGENCE. Being on the premises by invitation of the occu- pier is distinguished from being there by his mere licence, in which case the occupier is presumed to undertake no warranty in regard to the safety of the premises. But even where there is a bare licence the owner or occupier giving the licence is liable for anything in the nature of a trap upon the premises known to him, and of which he fails to warn the person who obtained his permission to go there. \_Southcote v. Stanley, 1 H. & N. 247 ; White V. France, 2 C. P. D. 308.] It is not, per- haps, easy in all cases to distinguish the circum- stances which imply an invitation from those which imply a mere licence ; and the only guide on this point will be a close study of the decided cases. Of those in which invitation has been inferred, I shall instance Nicholson v. Lancashire ^ Yorkshire Ry. Co. [34 L. J. Ex. 84] ; Indermaur v. Dames [L. B. 1 0. P. 274, and 2 C. P. 311]; Smith v. London ^ St. Katharine Docks Co. [L. R. 3 C. P. 326] ; Holmes v. N. E. Ry. Co. [L. E. 4 Ex. 254; 6 Ex. 123]; Chapman v. Rothwell [El. Bl. & El. 168 (a)] ; Smith v. Steele (pilot injured by negli- case is that of Broohes v. &e., in a passage. In tlie case Oourtenay, Q. B., 20 L. T. of Paddock v. N. E. By. Go. (N.8.) 440. [18 L. T. (N.8.) 60], a person (a) This was a case on de- coming on business to a rail- murrer. Declaration stated way goods depot, and follow- that deceased fell through a ing in the dark as nearly as trap-door negligently left open, possible the directions of a INVITATION OR LICENCE. 63 gence of defendant's crew) [L. R. 10 Q. B. 125]; Wright V. L. ^ N. W. Ry. Co. [L. R. 10 Q. B. 298]; WatUm v. G. W.Ry. Co. [C. P. Div., 25 W. R. 905] ; Caledonian Ry. Co. v. Greenock Sail- ing Co. [Court of Session, 4tli series, vol. ii. p.671] ; and of those where a mere licence has been m- feTred—BolcJi v. Smith [7 H. & N. 736, 31 L. J. Ex. 201] ; Sullivan v. Waters [14 Irish C. L. R. 460] ; GautretY. Egerton [L. R. 2 C. P. 371.] § 44. The principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a licence is inferred where servant of tlie company, fell into a coal receiver, a deep place occupying the width be- tween the rails, where coal- waggons were standing. The Exchequer Chamber held that there was a case for a jury. But in a very similar case to the last, where the plaintiff in the dark fell down an ordinary staircase, he was nonsuited. [ Wilkinson v. Fairrie, 1 Hurlst. & C. 633.] In the case of Ax- ford V. Prior [C. P., 14 W. E. 611], a person coming to see a friend at a public-house fell through a hole in the parlour which was being repaired. There seems to have been con- tradictory evidence whether he was warned or not. He was held, after verdict, en- titled to damages. In White v. France [2 C. P. D. 308], plaintiff, a licensed waterman, going to defendant's wharf to mate a complaint as to the navigation of his barge, and also to ask for employment, was damaged by the fall of a bale of goods negligently left by defendant's servants in a dangerous position. He was held entitled to maintain an action. In all these cases, ex- cept Fairrie's, there seem to have been present both the elements of invitation and of something like a trap. 64 EXACT DILIGENCE. the object is the mere pleasure or benefit of the person using it. A case where the common interest is not at first obvious, but yet was held sufficient to infer invitation, was that of Smith v. London ^ St. Katharine Dock Co. [L. R. 3 C. P. 326] where the damage occurred by reason of a gangway, provided by the company for access to a ship lying in the dock, being left in an insecure condition. The sufferer had come on board at the invitation of one of the ship's officers. The ground of decision was that the providing of access to the ships for the crews and all who had business on board was within the undertaking of the company, for which they received consideration in the dues authorized to be taken from the shipowners. In- vitation, therefore, in the technical sense of the word as employed in this class of cases, differs from invitation in the ordinary sense — implying the relation between host and guest. In the case of host and guest, it would be thought hard that the hospitality of the former should expose him to the responsibilities implied by business relations. The guest must take the premises as he finds them, with any risk owing to their disrepair ; although the host is bound to warn his guest of any con- cealed danger upon the premises known to himself. [SoutJicote V. Stanley, 1 H. & K 247 ] Where a railway company, having a station unprovided with a foot bridge, invite persons using the station to cross the rails, it would seem that very slight COMMON CARRIERS. 65 additional circumstances shewing want of pre- caution on the part of the company, will warrant a jury in a verdict against the company for damage to an intending passenger crossing the railway. \_Girdwood v. N. B. Ry. Co., Court of Session, 4th series, vol. iv. p, 115.J § 45. (tj) I shall now consider the case of common (rj) Responsi- carriers, from whom, by the law of England, a mon carriers peculiar kind of responsibility is exacted. And strTct.'""* ^ the responsibility of common carriers falls to be considered here, because their responsibility is greater than that of those from whom merely ordinary care is demanded. But their case is exceptional. For the contract being to carry for hire, the benefit of both parties is contemplated. A common carrier is one who undertakes to carry for hire, from one certain place to another, such goods as shall be delivered to him for carriage by any person. The carrier is answerable by the custom, as it is said, of the realm, for every loss or injury to the goods so delivered, unless occasioned by the act of God, or the Queen's enemies ; and he is, moreover, bound to receive and convey any goods of every applicant who is ready to pay the price of carriage provided there be room for them, [Smith, L. Ca. vol. i. p. 206 ; Stephen's Comm. vol. ii. p. 86.] When a person has received goods in the capacity of a common carrier, he is not discharged from liability in that capacity until he 66 EXACT DILIGENCE. has either delivered the goods to the consignee or his assignees, or until a reasonable time has elapsed after the consignee has notice of tlie arrival of the goods, for him to come and receive them. [^Bourne V. Gatliff, Ex. Ch., Dec. 9, 1841 ; 3 Scott, N. E. 1 ; 3 M. & a. 643; H. of L., June 7, 10, 1844; 8 Scott, N. R. 604 ; 11 CI. & Fin. 45.J In the case of carriage of goods by sea, the time and mode in v^^hich the shipowner may land the goods so as to discharge himself from liabiKty is now, in the absence of express stipulation, defined by statute. [25 & 26 Yict. c. 63, § 67 ; see Wilson v. London, Italian, Sfo., Co., L. E. 1 C. P. 61.] § 46. A common carrier may, however, defend himself by shewing that the goods have perished by some internal defect without fault on his part. And if, from the nature of the goods consigned, they are liable to peculiar risks, and the carrier takes all reasonable care and uses all proper pre- cautions to prevent injuries, he is excused if they are destroyed in consequence of such risks. [Jones on Bailments, 4th ed., App. xxi., cited in Blower v. G. W. Ry. Co., L. E. 7 C. P. 660.J And, accoi-d- ingly, although it has been held that a railway company undertaking to convey animals, is a common carrier. [_McManus v. Lane. iSf York. Ry. Co., 4 H. & N. 327 ; 28 L. J. (Ex.) 358 {a) ; Paxton (a) In the case of Richard- 7 C. P. 75], it was expressly son V. N. M By. Co. [L. E. found in the case stated by COMMON CARRIERS. 67 V. N. B. Ry. Co., Court of Session, 3rd series, vol. ix. p. 50], yet if damage occurs through the animals' " proper vice " the carrier is not liable. [Blower V. G. W. Ry. Co., L. R. 7 C. P. 655 ; Kendall v. L. ... incident to the the service, is not capable oi any certain criterion, service? Perhaps the doctrine has been stretched to its furthest point when it has been held that a risk arising from the circumstance that the company is in the habit of employing an insuflScient number of hands, to the knowledge of the person under- taking the service, is a risk incident to his contract of service. Yet this seems to be, in England, esta- blished by authority. \_Skipp v. E. C. By., 9 Exch. 223.] It was a still greater extension of a risk incident to the service to hold that the owner of a ship does not warrant to the crew the sea- worthiness of the vessel. Yet this also was held First branch of r»7roT-niOT»i ^'"^^>' ''■ Steel. to be law m the case oi Couc/i v. oteet [3 Ell. & 131. 402]. By the provisions of the Merchant Shipping Law now . altered by Act, 1876, however, the shipowner incurs to the statute, and ., , , T •! T shipowner in crew a warranty similar to that above described efifect warrants . . „ , . , to seamen m the case oi carriers oi passengers by rapid con- care that the veyance. This Act (39 & 40 Vict. c. 80) after seaworthy. (sect. 4) making it a misdemeanour for any person knowingly to send a ship to sea in an unseaworthy condition, enacts that (sect. 5) "in- every contract 158 CULPA (simply). of service, express or implied, between the owner of a ship and the master or any seaman thereof, and in every instrument of apprenticeship whereby any person is bound to serve as an apprentice on board any ship, there shall be implied, notwith- standing any agreement to the contrary, an obli- gation on the owner of the ship, that the owner of the ship, and the master, and every agent charged with the loading of the ship, or the preparing thereof for sea, or the sending thereof to sea, shall use all reasonable means to insure the seaworthi- ness of the ship for the voyage at the time when the voyage commences, and to keep her in a sea- worthy condition for the voyage during the same : Provided that nothing in this section shall subject the owner of the ship to any liability by reason of the ship being sent to sea in an unseaworthy state where, owing to special circumstances, the so sending thereof to sea is reasonable and justifi- able." § 108. It has been observed that the maxim superior " does , • i i j i t not extend to respondeat superior depends on the presumed con- independent trol implied by the relE^tion between the parties. It therefore does not extend to the case of an inde- pendent contractor to whom the execution of a work is committed without any control or power of direction being reserved on the part of the employer as to the manner of executing the work. [Ta^/lor V. Greenhalgh, L. R. 9 Q, B. 487; and RESPONDEAT SUPERIOR — MASTER AND SERVANT. 159 compare Pendlebury v. Greenhalgh, 1 Q. B. D. 36, and observations on those cases, p. 94, stijwa.] In such cases the law makes the contractor alone responsible for damage done by him in the execu- tion of the works \_Welfare v. Brighton Ry. Co., L. R. 4 Q. B. 696], the maxim respondeat superior applying only to the contractor for acts of his servants. But the rule which thus exempts the employer does not apply to cases where the inju- rious act is the very act which the contractor was employed to do ; or a necessary consequence of the work committed to him. Nor, by parity of reasoning, is the employer exempted if he commits to the contractor the performance of a duty incum- bent on himself, and the contractor neglects its fulfilment. If the performance of the duty be omitted, the fact of the person owing it having entrusted it to a person who also neglected it, furnishes no excuse in law. [_Per Williams, J., delivering the judgment of the Court in Pickard V. Smith, 10 0. B. (N.S.) 480, cited in Mersey Pocks Trustees v. Gihbs, L. R. 1 H. of L. 114; see also Gray v. Pullen, 5 B. & S. 970 ; 34 L. J. (Q.B.) 265; Tarry v. Ashtm, L. R. 1 Q. B. 314; Stephen v. Thames Police Commissioners, Court of Session, 4th series, vol. iii. p. 535.] § 109. The principle last mentioned consists This is the with what has been already stated with regard care is not to situations where more than ordinary care is 160 CULPA (simply). demanded ; namely, that in such cases a person cannot exonerate himself by shewing that he dele- gated the business to independent and competent contractors. For the duty is in these cases con- ceived of as a positive duty — to take care, as opposed to the negative duty of not being guilty of heedlessness or rashness. And although, as I have shewn, the distinction between the different degrees of responsibility does not accurately cor- respond with any line between positive and nega- tive duties, it may be useful to conceive of the duty where the higher degree of care is demanded as a positive duty, for the special purpose of draw- ing the inference that the delegation of the duty to another will not exonerate from liability for non-performance. French law. § 110. It seems that the French law, in its ap- Commettant et ■.. . n t • 7 ... Prepose. plicatiou 01 the maxim respondeat superior, is m harmony with our own. A question depending on this law came recently before the Judicial Com- mittee of our Privy Council in an appeal from the Mauritius. By Art. 1384 of the Code Napole'on, " Les maitres et les commettants [sont responsa- bles] du dommage cause par leurs domestiques et prepose's dans les fonctions auxquelles ils les ont employes." In their interpretation of the article, the French lawyers appear to have qualified the doctrine so far as regards the commettant and prepose by saying that to make the commettant RESPONDEAT SUPERIOR — COMMETTANT ET PROPOSE. 161 responsible for the negligence of the pripose, the latter must be acting "sous les ordres, sous la direction et la surveillance du commettant." And in applying this law the Judicial Committee held the commettant responsible where, having employed certain Indians with gangs of labourers under them to clear a piece of ground, the plaintiffs house was burnt by their negligence. Having regard to the nature of the work and the condition of the men employed, the Court thought it unreasonable to infer that the defendant had parted with the power of correcting, as the work went on, the mode in which it was to be performed, and of directing what kind of brushwood and other growth was to be removed, and what was to be left standing. It was also observed that these men (the Indians) do not at all answer the descrip- tion given by Sirey (Codes Annot^s, vol. i. p. 665) of "ouvriers d''une profession reconnue et deter- minee;" they were ordinary labourers, characterised by the Court below as " a set of idle, careless, semi- barbarians." [Serandat v. Saisse, L. E. 1 P. C. Ap. 152, 167.] In regard to the proprietor and driver of a Lon- Cab-owners' don cab, although, as already seen \_Fowler v. Lock, trpubiL' ' ^ p. 135, supra], the relation as between themselves, is that of bailor and bailee, a liability towards the general public has been held to exist on the foot- ing that the driver is the servant of the proprietor, and the latter is responsible for his negligent M 162 CULPA LATA, driving by whicli a stranger is damaged. \_Powles V. Hider, 6 E. & B. 207; Venahles v. Smith, 2 Q. B. D. 279.] Person lending §111. A person Voluntarily lending a hand to ' a work, althongli not hired, is in no better position than the .workmen or servants engaged in the work. IDegg v. Midland By. Co., 1 H. & N. 773 ; Potter V. Faulkner, 1 B. & S. 800.J But the case is different where the person lending a hand to the work has himself an interest in having it done, as has been held in cases where the owner of cattle or goods, or his servants, being on the premises for that purpose with the consent of the railway company, has lent a hand to the operations for getting delivery, and while doing so been damaged by the fault of the company's servants. [ Wright V. L. Sf N. W. Ry. Co., L. B. 10 Q. B. 298; Holmes V. N. E. Ry. Co., L. E. 4 Ex. 254 ; ' Wyllie\. Cale- donian Ry. Co., Court of Session, 3rd series, vol. ix. p. 463.] III. Culpa lata aequiparata dolo. Culpa lata m § 112. I now proceed shortly to illustrate the two cases. Gratuitous lowBst degree of responsibility, namely, that where deposit and loan. more than ordinary negligence rs requisite to con- stitute injury ; and where, therefore, less than the ordinary care of a prudent and reasonable person is demanded. Of this class the two best marked GRATUITOUS DEPOSIT. 1(53 species are the responsibility of the gratuitous depositee, and the responsibility of the bailor in the case of commodate or loan. § 113. By the Roman lawyers the case of deposit Deposit, is emphatically given as an instance in which the bailee is only liable for intentional wrong {dolus), or for that gross negligence {culpa lata) which the law refuses to distinguish from intention. In the celebrated judgment of Holt, C.J., in Coggs v. Ber- nard, deposit is instanced as that kind of bailment in which, of all others, the least responsibility is demanded of the bailee. And in the most recent case where the liability of the depositee has been considered in our Courts, the practical result is to exonerate the bailee from a great part of that responsibility which in any case of contract from which he received benefit would certainly have been demanded of him. §114. I here refer to the case of Giblin v.Gmnv. McMullen [L. R. 2 P. C. Ap. 317], decided by the *''^""'"" Judicial Committee of the Privy Council on appeal from the Supreme Court of Victoria. It arose out of the loss of debentures to bearer from a box de- posited with the plaintiffs (who were bankers), as gratuitous bailees, and placed by them in their strong room, where a considerable amount of securities and specie of their own as well as valu- able property of other customers was kept. The M 2 164 CULPA LATA. customer retained possession of the key of the box. The debentures were abstracted by a servant of the bank, who left the service before the loss was discovered, and who, being a tried servant and bearing an excellent character, had been entrusted with the keys of both the doors (one within another), by which access to the strong-room was obtained, and who thus enjoyed opportunities of having access to the strong-room alone. After the discovery of the loss, the directors, by way of additional precaution, made regulations by which it became necessary that two officers of the bank should go together whenever the strong-room was visited. The Supreme Court of the colony held, in effect, that there was no evidence to go to the jury of such negligence as would render the bank liable for the loss ; and this judgment was affirmed by the Privy Council. Now it is clear that if the transaction had been one from which the bank received valuable consideration, for instance, if the securities had been placed with the bank by way of pledge for advances, there would have been evi- dence of negligence which could not have been / 7 '/iifi-',, „ 'withdrawn from the consideration of a jury. For ^^' ' ^>;Yi<,, , .? jthe fact that they afterwards thought proper to "2^ 2/ ' take an additional precaution would have been a piece of evidence from which a jury might have inferred that the precautions taken in the first instance were not such as reasonable and prudent men would have thought sufficient. BAILEES FOR EEWARD. 165 The distinction here pointed out was the ground of the judgment pronounced by the Master of the Rolls (Lord Eomilly) in He United Service Co., John- ston's Claim (Nov. 21, 1870), a case where the owner of shares of certain companies deposited the certi- ficates for safe custody with his bankers, who charged a small commission upon the collection of the dividends. The certificates were placed by the bank in the hands of their servant, who ob- tained money for his own purposes by forging transfers of the shares and delivering up the cer- tificates to the transferees. The owner of the certificates was in consequence obliged to bring a chancery suit against the companies to have his name restored to the register as a shareholder in their books. He was successful in the suit, but failed in recovering costs. For the expense to which he had been so put he claimed in the liqui- dation of the bank. The Master of the Rolls, hold- ing the bank to be bailees for reward, thought he was entitled to recover. The Lords Justices, on appeal [L. R. 6 Ch. 212], agreed that the bank were bailees for reward, not merely on the ground that they received commission, which they might have done without having the certificates deposited with them, but also being of opinion that the bank would have been entitled to a lien upon the certi- ficates for their general banking account, and that the case was therefore distinguishable from Giblin V, McMullen, where the customer kept the key of the 166 CULPA LATA. box and alone had lawful access to the contents. The Lords Justices, however, thought that the neglect of the bank was not the only reason of the costs in the suit being refused, and held that the special damage claimed was not the natural, neces- sary, or ordinary consequence of that neglect, and could not be recovered against the bank. The expression § US. In the judgment delivered by Lord geM°e "°n?t'" Chelmsford as the judgment of the Court in this ap^'edlolTes case, the expression " gross negligence," as used depodtr"""' 'by Chief Justice Holt and since misapplied by others, is criticised, and in a qualified manner de^ fended. But the criticism, as well as the defence of the expression, is misdirected. For it fails to point out that while Holt used the word techni- cally as translating the technical expression culpa lata (aequiparata dolo), his successors applied it not only loosely, but in a manner grounded on misconception, as I have already pointed out. In this case (of GibliuY. McMullen), therefore, the ex- pression " gross negligence " might well have been employed in a exact and technical sense to indicate that kind of negligence which the Eoman lawyers were wont to equate to intention. Note also that in this case of Giblin v. McMullen much weight is given to the circumstance that the bank kept the securities as they kept their own of the like nature. And this circumstance seems to have been thought sufficient to rebut any inference of gross negligence RESPONSIBILITY OF BAILOR. 167 which might have been drawn from the mere fact of loss, and to have necessitated some positive evidence of neghgence. The weight given to the circumstance of the bank keeping the goods with the same care as their own is in exact accordance with the principles of the Eoman law above referred to. § 116. Of the responsibility of the bailor in com- Loan, modate or loan, I will cite a text of the Eoman law, the principle of which doubtless applies to ours : Item qui sciens vasa vitiosa commodavit, si ibi in- fusum vinum vel oleum corruptum effusumve est, condemnandus eo nomine est [D. xiii. 6. 18, § 3]. This text was cited by Mr. Justice Coleridge, de- livering the judgment of the Court in the case of Blakemore v. Bristol and Exeter Ry. Co. (8 E. & B. 1035), with the following comment : — " This is so consonant to reason and justice that it cannot but be part of our law. Would it not be monstrous to hold that, if the owner of a horse, knowing it to be vicious and unmanageable, should lend it to one who is ignorant of its bad qualities and conceal them from him, and the rider, using ordinary care and skill, is thrown from it and injured, he should not be responsible? The principle laid down in Coggs V. Bernard, and followed out by Lord Kenyon and Buller, J., and by Lord Tenterden in the nisi prizes cases cited in the note in Smith's Lead- ing Cases [vol. i. p. 162, 4th ed.J, that a gratuitous 168 CULPA LATA. agent or bailee may be responsible for gross neg- ligence or great want of skill, gets rid of the ob- jection that might be urged from want of consider- ation to the lender. By the necessarily implied purpose of the loan, a duty is contracted towards the borrower not to conceal from him those defects known to the lender which may make the loan perilous or unprofitable to him," [See also McCarthy v. Young, 6 H. & N. 329 ; 30 L. J. Exch. 227, Sm. L. Oa. 6th ed. pp. 225, 226.J It is a fortiori clear that when a person knowingly gives another dangerous goods to carry for a reward, he is bound to give notice of their dangerous character to the person employed to carry them. \_Farrant V. Barnes, Jan. 23, 1862, 11 C. B. (N.S.) 553.] In such a case negligence (in the ordinary sense) on the part of the person giving the goods to be carried is certainly sufficient to infer liability ; and there is good authority for saying that the person sending goods for carriage without notice that they are of a dangerous character warrants that they are not so. \_Brass v. Maitland, 6 BU. & Bl. 470 (goods shipped on board a general ship). See also Pentonv. Murdoch, C. P., 18 W. R. 382 (glandered horse).] Dedication of § 117. In the Same category with the above may way to public. . . . be mentioned the case oi a person gratuitously dedicating a way to the public. The public adopt- ing a way dedicated to its use must take it as it is. PROXIMATE AND REMOTE CAUSE. 169 [Eobbins v. Jones, 15 C. B. (N.S.) 221, 243 ; Fisher V. Prowse, 2 Best & Sm. 770.] At the same time it is scarcely to be supposed that the dedicator would be justified in omitting to warn the public of a concealed danger in the way, known to himself. §118. I shall conclude this essay with some Proximate and . . „ , , . . -_ , remote cause. observations oi general application. In order to impute injury to the person whose negligence causes the damage, it is necessary that the neg- ligent act or default should be the immediate or proximate cause of the damage, or, to speak more accurately, that such damage is within the ordinary or probable consequences of the act or default. [Sharp V. Powell, L. E. 7 C P. 259, per Grove, J.] The typical case illustrative of this principle is the well-known case of Scott v. Sheppard, 1 Sm. L. C. 417 ; where a squib thrown by defendant, and picked up and thrown by others, ultimately damaged plaintiff's eye. This was a case of trespass, so that the question was of intention. I cite the fol- lowing cases where negligence is in question. I cite first the case of Smith v. London and S. W. Cases of proxi- Ry. Co. [L. R. 6 C. P. 98] : a case of the following nature. In an exceptionally dry season workmen employed by a railway company in cutting grass and trimming the hedges bordering the railway, placed the trimmings in heaps near the line and 170 PROXIMATE AND REMOTE CAUSE. allowed them to remain there fourteen days. Fire from a passing engine ignited one of these heaps, and burned the hedge, and was thence carried by a high wind across a stubble field and a public road, and burned the goods of the plaintiff in a cottage about two hundred yards from the railway. It was held by two judges out of three in the Common Pleas (Bovill and Keating, JJ., against Brett, J.) that there was evidence to go to a jury of actionable negligence on the part of the com- pany \_Smith Y. London and S. W. Ry. Co., L. R. 5 0. P. 98], and this judgment was affirmed by the Exchequer Chamber, Nov. 30, 1870. This was perhaps an extreme case, as the difference of opinion among the judges seems to imply. I here refer also to a case arising out of negligence to protect the public using a road from the effect of a jet of water likely to frighten horses coming along it ; the jet of water being caused by the defendants the New Eiver Company in the exercise of their statutory powers. \_Hill v. New Rimr Co., Q. B. 18 L. T. (N.S.) 555.] I refer also to a case where commissioners under a Drainage Act were made responsible for the flooding of land owing to the negligent construction of the works made under the powers of their Act [Collins v. Middle Level Commissioners, L. R. 4 C. P. 279] ; to the case of a gas company who had laid down a defective gas- pipe, causing an escape, and a consequent ex- plosion : and where the company were held liable PROXIMATE AND REMOTE CAUSE. 171 for the damage done to the shop although the explosion was partly due to the negligence of the gasfitter who was called in and went to the place with a lighted candle \_Burrows v. March Gas Co., L. R. 5 Ex. 67]; and to the case where a ship becoming unmanageable through the negligence of the captain and crew at a point about three- quarters of a mile from a lee-shore, drifted ashore and damaged the plaintiff's sea-wall. In this last case the negligence was held the proximate cause of damage, and therefore the owners of the ship were held liable. \_Bailiffs of Romney Marsh v. Trinity House, L. R. 5 Ex. 208.] § 119. I have already (p. 39, supra) referred to the case of Atkinson v. Newcastle, ^c. Water- works Co., where it was held, on appeal, that no action lay, by a person whose house was burnt down, for the breach of the duty imposed by statute on the company to keep their pipes charged at a certain pressure. The decision of the Court of Exchequer [L. E. 6 Ex. 404], which was over- ruled, may yet be cited on the question of proxi- mate cause, to shew that had there been a duty on the company which could be enforced by a suit at> the instance of a private individual, the damage might, in the opinion of the Court, be considered the natural result of that neglect. In the case of Lavirence v. Jenkins [L. R. 8 Q. B. 274] already cited (p. 32, supra) the escape of the cows, and 172 PROXIMATE AND REMOTE CAUSE. their death from eating of the yew-berries which they so got at, was held to be the natural conse- quence of the act which caused the gap in the fence. The only question was whether the defend- ants were liable for that act, which was the act of another, and that being decided in the affirma- tive as before mentioned, the defendant was held liable for the consequences. The case, also before mentioned (p. 33, supra), of Firth v. Bowling Iron Co., where the defendants allowed their iron fence to decay, and the plaintiff's cow browsed upon the fragments [3 0. P. D. 254], is somewhat analogous. In the case of Sneesby v. Lancashire and Yorkshire Ry. Co. [L. R. 9 Q. B. 263], which was affirmed on appeal [1 Q. B. D. 42], the defend- ant company were held liable for the consequence of their servants' act in negligently sending some empty trucks down an incline into a siding, so as to frighten and render unmanageable a herd of cattle which was being driven along an occupa- tion road. The cattle were afterwards killed on another part of the railway, and this was held to be the natural consequence of the act in question. Where a vessel (No. 1) by improper navigation compelled another (No. 2) to alter her course, and in consequence No. 2 came into collision with and damaged No. 3, No. 1 was held liable to No. 3 for the damage. \_The Sisters, 1 P. D. 117.] The case of Smith v. Green [1 C. P. D. 92], though arising out of express warranty, and where, there- PROXTMATE AND REMOTE CAUSE. 173 fore, the question of negligence did not directly- come into question, may appropriately be cited here. The defendant sold to the plaintiff, whom he knew to be a farmer, a cow "warranted free from infectious disease," &c. The cow was in fact suffering from foot and mouth disease ; other cows placed in the same field by the farmer caught the disease and died ; and the deaths of those cows as well as of the first cow were held to be the natural consequence of the defendant's breach of warranty. § 120. The question of proximate and remote ciark t. p n • -I ^ 1 p ,1 Chambers. cause was very lully considered, and many oi the previous cases commented on, in the case of Clarh V. Chambers [3 Q. B. D. 327], where the defend- ant, who had put up a chevaux de /rise as a barrier across a private road over which he and others had rights of way, was held liable to the plaintiff", who, lawfully passing along the road on a dark night, ran against the chevaux de frise, in an unexpected place to which it had been removed by the inter- vention of a third person without the knowledge of the defendant. Harris v. Mohbs [June 18, 1878, C. P. Div.], was an action under Lord Campbell's Act. The defendant had left a van, with ploughing gear, on the grassy side of a road, to stand there for the night. Deceased drove by along the road, and his mare, who it appeared in evidence was a confirmed kicker, shied at the thing, and then kicked and ran away, upset the deceased, and 174 PROXIMATE AND REMOTE CAUSE. kicked him so that he died. It was held by Denman, J., that the act of the defendant^ in leav- ing the van, was an unreasonable user of the high- way, and that the death was the proximate and natural result. Cases where consequence held too remote. § 121. I now cite some cases in which it has been held that the damage complained of could not be attributed to the negligent act or default as its proximate cause. In a case where a person receiving a popular ovation, imprudently, though unintentionally, in- cited others to commit damage, he was held not liable to make compensation. \_Peacoch v. Young, 18 W. R. 134 (Q. B.] In the case of Sharp v. Powell [L. E. 7 0. P. 253] above referred to (p. 169, supra), the defendant's servant had, contrary to the provisions of the Police Act, washed a van in the street, and suffered the water used for the purpose to flow down a gutter towards a sewer about twenty-five yards off. The weather being frosty, a grating through which the water flowing down the gutter passed into the sewer had become frozen over, in consequence of which the water sent down by the defendant, in- stead of passing into the sewer, spread over the street, which was ill-paved and uneven, and there froze. The plaintiff's horse coming to the place slipped and fell, and was damaged. It was held that, as there was nothing to shew that the defend- PROXIMATE AXD REMOTE CAUSE. 175 ant was aware of the obstruction of the grating, and as the stoppage of the water was not the neces- sary or probable consequence of the act, the defen- dant was not responsible for what had happened. In a case in the Queen's Bench \_Hobhs v. L. ^ S. W- By. Co., L. E. 10 Q. B. Ill], plaintiff with wife and children was taken to Esher instead of to Hampton at 12 o'clock on a wet night, and had to walk home a distance of between four and five miles. He was held entitled to retain a verdict for £8, for the inconvenience, but not for £20 com- pensation found by the jury for the wife's having caught cold and being laid up in consequence. In a case where a leakage in the pipe laid by a water company across a road, caused the ground to be saturated with water, and the plaintiff, a con- tractor, who had undertaken to make a tunnel under the road at an agreed on sum, suffered loss by reason of the work being consequently more expensive than he anticipated, it was held that the plaintiff could not recover compensation for such loss in an action against the water company. \_Cattle V. Stockton Waterworks Co., L. R. 10 Q. B. 45 3. J I here again refer to the case of Baxen- dale V. L. C. df D. By. Co. [L. R. 10 Ex. 35], where the costs of an unsuccessful defence by a carrier in an action against him by the consignee, were held too remote to be recovered as damages in an action by the carrier against the railway company with which he had made a sub-contract remote or not. 176 PROXIMATE AND REMOTE CAUSE. for carriage of the goods ; and to the case of Jack-' son V. Metr. By. Co. [3 App. Ca. 193], where the neghgence of the company in permitting an uncontrolled crowd to get into a carriage at one station, was, if a cause at all, too remote to be made an actionable ground for damage which occurred to plaintiff's thumb through the scrimmage at the next station. Special § 122. I havc already referred to the case of Re wither too United Service Co., Johnstons Claim [L. R. 6 Oh. 2r2], where it was held by the Lords Justices on appeal that the special damage claimed for the expenses of a chancery suit resulting from the loss of share certificates, was not the natural, necessary, or ordinary consequence of the neglect, or, in other words, was too remote. I now cite some cases of contract where special damage was claimed and disallowed as too remote. The principle is, that if the contract is made by one party for a special purpose he must in order to fix the other with the responsibility for the failure of that purpose (not being a loss which might reasonably be considered as naturally resulting from the breach of contract), give express notice of the purpose in such a mannef that the other party by making the contract impliedly warrants that the purpose should be answered. In Woodger v. G. W. Ry. Co. [L. R. 2 C. P. 318], a commercial traveller was held not entitled to recover personal expenses incurred by PROXIMATE AND REMOTE CAUSE. 177 him while waiting for a box which was delayed in carriage, but of the contents or purpose of which he had given no notice to the company. The fol- lowing case is a good illustration of the principle. Machinery of a saw-mill was shipped at Glasgow for Vancouver's Island, the shippers having a general knowledge of the nature and purpose of the goods. On arriving at the destination an essential piece of the machinery was found want- ing. The shippers were held liable for the cost of replacing the lost articles at Yancouver's Island, with 5 per cent, for the delay, but not for special damage for the loss of profits. Such damage was held too remote a consequence of the negligence, there having been no express contract for a special purpose so as to import a warranty. [British Columbia Sawmill v. Nettleship, L. R. 3 C. P. 499 ; see also Coryy. Thames Ironworks Co., L, R. 3 Q. B. 181 ; H(yme v. Midland Ry. Co., L. R. 7 C. P. 583, affirmed Ex. Ch. 8 C. P. 131 ; " 77*6 Parana,'' 2 P. D. 118, 0. A. from Probate Div. Mar. 27, 1877.] -As an illustration, on the other hand, of the circumstances where special damage on a con- tract has been held well claimed, I may cite Simp- son V. L. the result of contract havmg been made between A. and ±5., a tentioT ' duty bccomes owing from A. to a third person, 0. Instances of this are the cases of Langridge v. Levy [2 M. & W. 519, and 4 M. & W. 337] (gun sold for use of plaintiff and his sons) ; George v. Skivington [L. E. 1 Ex. 1] (hair-wash for use of plaintiff's wife). It is hard to say on what prin- ciple these cases rest, unless it be that the vendor of a weapon dangerous to the user, or of a dele- terious compound, must be presumed to intend the consequences to the person for whose use it is sold. Where there is merely ordinary negligence in the execution of a contract it does not appear that the negligent act can involve liability to a person not a party to the contract, and for an occurrence re- moved in respect of time and place from the act itself. Thus where a plaintiff declared that the defendant negligently and improperly hung a chandelier in a public-house, knowing that the plaintiff and others were likely to be there, and that the chandelier unless properly hung was likely to fall upon and injure them, and that the plaintiff being lawfully in the public-house the chandelier fell upon and injured him, the declaration was on CONTRIBUTORY NEGLIGENCE. 179 demurrer held bad. [Collis v. Selden, L. R. 3 C. P. 495.] If the declaration had alleged that the defendant had knowingly hung the chandelier so as to be dangerous, it might have disclosed a cause of action ; and it might possibly have been sufficient to prove that the defendant by his personal act or wilful omission in the matter, either doing the work himself and doing it so that the thing was dangerous, or by employing workmen whom he knew to be unskilled in the matter, was guilty of such gross negligence that the law would presume intention — the intention, namely, of a person " set- ting a trap." The case of Winterhottom v. Wright [10 M. & W. 109,] referred to in the judgment of this case, was a case where the defendant con- tracted with the Postmaster General to provide a mail coach, and the plaintiff, who was hired to drive the coach was damaged in consequence of its breaking down through latent defects in its construction. It was held, in effect, that there was no warranty on the part of defendant towards the plaintiff in respect of the fitness of the coach. § 124. It remains to consider the cognate topic Contributory T 5> 1 • 1 negligence. 01 " contributory negligence, namely, to consider the questions which arise where the damage com- plained of is in some manner or to some extent attributable to a breach of duty on the part of the person damaged. In the treatment of these ques- tions there has been a variance between the practice N 2 180 CONTRIBUTORY NEGLIGEISrCE. of the Admiralty and Common Law Courts ; and this variance still survives in the distinction adopted by the Judicature Act of 1873 between damages arising out of collision between ships and other cases of damage. In cases of collision where both parties are to blame, the Admiralty Courts used the simple method of dividing the loss between them. This rule has been adopted in the French Civil Code, and has now by the Judicature Act of 1873 been retained as the rule in all'cases of collision between ships. The English Courts of Common Law have at- tempted the more difficult task of analyzing the cause of damage, and have acted on the principle that the person damaged is not entitled to com- pensation if guilty of what they term " contributory negligence." It has been questioned whether this doctrine of " contributory negligence " is based on the reason that a person so guilty ought to be personally barred from suing, or whether it is merely a corol- lary to the proposition that the plaintiff must prove damage resulting from the breach of duty on the part of the defendant as its proximate cause. This theoretical question is intimately connected with the practical one whether (in cases tried with a juj-y), on the plaintiff's case disclosing contributory negligence, the judge should direct a nonsuit, or should leave the whole case to the jury. The CONTRIBUTORY NE&LIGENCE. 181 balance of authority seems to be in favour of leaving' the whole case to the jury, if there is room for doubt of the facts from which the con- tributory negligence is inferred, or if there is a fair question as to the conclusion which a practical man may draw from the facts — for instance, as to whether the facts amounted to an intimation by the defendant, on which the sufferer relied, of the absence of danger — in which case there would be no negligence in his acting on such intimation. But if there are facts disclosed in the plaintiff's case, the truth of which is not disputed, and which if true clearly shew that the sufferer contributed to the disaster, then the judge may nonsuit. \_Praeger v. B. ^ E. By. Co., L. E. 6 Q. B. 402, n ; Britton v. G. W. Ry. Co., L. E. 7 Ex. 130; Weller v. L. B. ^ S. C. Ey. Co., L. E. 1 C. P. 126 ; Watkijis v. G. W. Ry. Co., 25 W. E. 905 ; Pater son v. Wallace, 1 Macqueen, 748 ; Bridges v. N. London Ry. Co., L. E. 6 Q. B. 377, 394 ; L. E. 7 H. L. Ap, 213 ; Lewis v. L. C. ^' D. Ry. Co., L. E. 9 Q. B. 66, and other cases as to invitation to alight cited pp. 126-1 28, mpra^ Perhaps this is the same as to say that the balance of authority with us inclines to the second alternative of the theo- retical question. And I think upon the whole this is the rationale of the decisions in our Courts, (a) But they are not logically consistent, (a) I have not yet seen a appeal case of Slattery v. The complete report of the Irish Dublin, Wiclclow & Wexford 182 CONTRIBUTORY NEGLIGENCE. for they have on the other hand laid down the rule that the contributory negligence of a third person is no defence. \_Illidge v. Goodwin, 5 C. & P. 190 ; Lynd v. Nurdin, 1 Q. B. 29 ; Abhot v. Macfie, 2 H. & 0. 744 ; Harrison v. G. N. By. Co., 3 H. & 0. 231.] Indeed it would be impossible to carry the theory of the defendant's negligence being the one proximate cause of the damage to all its logical consequences, for there must be some complexity of causes in every case. The line must be drawn somewhere, and it is drawn at contributory negligence of the person damaged. In some American cases it has been held that where the extent of the damage has been aggra- vated by the plaintiff's act, but that act cannot be viewed as a contributory cause of the whole damage, the damage is divisible, and the plaintiff is entitled to recover to the extent of the damage which would By. Go., commented on in an very strong they could not set article in the Law Journal, aside the verdict and enter a 17th August, 1878. It appears verdict for the defendants. But that the case was tried upon it appears they were precluded two distinct issues — one of from entertaining the question negligence on the part of the whether the verdict was against company, the other of contri- evidence, and I do not think butory negligence on the part this decision can interfere with of the deceased, — and that the the rule that where the case is jury found a verdict for the tried upon a general issue, and plaintiff on both issues. The the contributory negligence is Court by a majority decided clearly shewn on the plaintiff's that although the evidence of own case, he may be non- contributory negligence was suited. CONTRIBUTORY NEGLIGENCE. 183 have been sustained without his fault. But this doctrine has been distinctly repudiated in England. In Greenland v. Chaplin [5 Ex. 243, 247], Pol- lock, C.B., says, " I entirely concur with the rest of the Court that a person who is guilty of negli- gence, and thereby produces injury to another, has no right to say, ' Part of that mischief would not have arisen if you yourself had not been guilty of some negligence.' " I shall now mention some of the points which have been decided under the head of contributory negligence. § 125. It has been held that, notwithstanding Cases of ' . . contributory the neglect by a master oi a statutory duty to negligence. have his tackle daily examined for the purposes of safety to his servants, yet a servant who risked his safety on the tackle with notice of its dangerous condition was barred from making the master liable. [Senior v. Ward, 1 Ell. & Ell. 385. See also Cook V. Bell (Court of Session), 2nd series, vol. XX. p. 137 ; Caswell v. Worth, 5 E. & B. 849 ; cf. Doel V. Sheppard, 5 E. & B. 856.] So a person crossing a railway at a level crossing where there is no express statutory duty imposed on the com- pany is bound at least to look before he crosses. [Stvhley V, London and N. W. By. Co., L. E. 1 Ex. 20 ; Skelton v. London ^ N. W. Ry. Co., L. E. 2 C. P. 631.] And it has been held that where a 184 CONTRIBUTORT NEGLIGENCE. railway company have omitted to perform the statutory duty of having a man to open and shut the gates at a level crossing, a person driving a gig getting out and opening the gates for himself, and being damaged by the gates swinging back against his horse, was not entitled to recover against the company. [Wyatt v. G. W. Ry. Co., 6 Best & Smith, 709.] The judgment was dissented from by Mr. Justice Blackburn, and the question was left open whether the plaintiff would have been entitled to recover if he had been damaged by a passing train. Where a sailing vessel in tow proceeded during a fog and got aground, the owners were held to have no remedy against the owners of the tug ; it having been the duty of the master of the sailing vessel to order the tug to stop. \_SmitJi V. St. Lawrence Towhoat Co., L. R. 5 P. C. Ap. 308.J Contributory It may Seem harsh to apply the doctrine of con- negligence of ., - . . . child. tributory neghgence to a case where damage occurs to a young child. Yet this application is made, and this whether the fault is that of the child itself or the negligence of the person under whose immediate care it is. \_Singleton v. Eastern Counties If I YVjWiRy. Co., 7 C. B. (N.S.) 287; Waite v. North-^ ' / Eastern Ry. Co., 2 B. & E. 719 ; Grant v. Caled. Ry. Co. (Court of Session), Dec. 20, 1870.] A fortiori, a child is barred from redress when the proximate cause of the damage is its own meddling CONTRIBUTORY NEGLIGENCE. 185 with a thing which would be safe if let alone, or generally when the immediate cause is what may be described as the child getting into mischief. \_Mangan v. Atterton, L. R. 1 Ex. 239 ; Davidson v. Monklands Canal Ry. Co. (Court of Session), 17 D. 1038 ; Lumsden v. Russell, 18 D. 468.] The child himself would indeed be, in such cases, liable as a wrongdoer for damage done by his mischievous act. § 126. In the case of Waite v. N. E. Ry. Co., Sufferer cited in the last paragraph, the decision, following with wrong- Thorogood v. Bryan [8 0. B. 115], was based on the principle that the child was identified with the person under whose care it was. And on the same principle it has been held that the inspector of a railway company travelling in one of their trains on the line of another company over which the first company had running powers, and who met with damage caused partly by the negligence of the second company causing an obstruction, and partly by the reckless driving of the engine- driver of the first company, was so far identified with the first company as to be unable to recover in an action against the second company. [^Arm- strong V. Lane. (S)- York. Ry. Co., L. E. 10 Ex. 47.] This doctrine of " identification " has been adversely criticised, as appears from the authorities cited in argument in the case last quoted. In a Scotch 186 CONTRIBUTORT NEGLIGENCE. case, Adams v. Glasgow ^ South- Western Ry. Co., Dec. 7, 1850, the Court of Session avowedly de- clined to recognise the principle. This case admits of no distinction in principle from the case of Armstrong, in the Court of Exchequer. It would be difficult to assign any principle for the English rule unless on the second of the theoretical alter- natives mentioned in par. 124, supra ; but if this theory of contributory negligence is admitted, the identification theory is quite in harmony with it, and merely supplies a subordinate rule in drawing the line where to stop in the analysis of causes. Contributory § 127. Contributory negligence of a simple or negligence . ... no answer to Ordinary degree is no answer to injury caused by a case of i i i intentional such gross negicct as the law equates to inten- tional mischief. This I take to be the principle of the decision in Lynch v. Nurden [1 Q. B. 38], where the plaintiff, a young child, was hurt by playing with a cart which the owner had left unat- tended in a public place. When a person in charge of a horse and cart leaves it alone in a public place it is obvious that some mischief is the natural con- sequence. And therefore negligence of this kind may well be equated to intention. The principle is similar to that on which it was held, even before the Acts prohibiting spring guns, &c., that trespass is no answer to the serious injury caused by these CONTRIBUTORY NEGLIGENCE. 187 instruments placed by the owner on his premises without notice. [^Bird v. Holhrook, 4 Bing, 628] (a) A curious case occurred in Scotland of damage from nitro-glycerine left in a can in a hut, where tres- passers coming from a frequented place adjoining had easy access. The owner of the premises succes- fully exonerated himself by proving that he had ordered the can to be emptied and that the order had been carried out by two men, who turned the can over into a running stream, not being aware that a portion of the dangerous compound had re- mained (as it did) in a solid state, and this it was that caused the explosion. \_Galloway v. King, Court of Session, 3rd series, vol. x., p. 788]. I think the true principle is, that where the damage results immediately from a trespass, whether of child or man, the question is whether the defendant is chargeable with such heedlessness or rashness as in its probable and natural results is equivalent to the setting, without notice, of a dangerous trap or spring-gun. This theory seems to reconcile the cases immediately above cited with Hughes v. Mac- fie, Abbott V. Macfie, 12 W. R. 315, 2 H. & C. 744, and Mangan v. Atterton, L. R. 1 Ex. 2^'d, supra cit., and to be in itself reasonable. The doubts ex- pressed as to Mangan v. Atterton [L. R. 1 Ex. 239] (a) This was a case which these instruments (now re- arose out of an occurrence placed by 24 & 25 Vict. c. 100, previous to the Act 7 & 8 and 27 & 28 Vict. c. 47). Geo. IV. c. 18, prohibiting 188 CONTRIBUTORY NEGLIGENCE. in the later case of Clarlc v. Chambers [L. E. 3 Q. B. 327, 339], really come to this, whether the exposing for sale in a public street on market-day, an oil-cake crushing machine which anybody could set in motion by turning the handle, and without the handle being in any way secured, was not an act of this nature, having regard to the likelihood of children not understanding the danger being tempted to play with it ; and, a jury who had inspected the machine having found that the machine was dangerous and one which should not have been left unguarded in the way of ignorant people without at all events the handle being re- moved or fastened up and the cogs thrown out of gear, it is well worthy of further consideration whether the facts did not bring it within the prin- ciple of Bird V, Holbrooke. In a Scotch case, Campbell v. Ord [Court of Session, Nov. 5, 1873], the facts of which are almost identical with Man-^ gan v. Atterton, the plaintiff was held entitled to recover, and the two cases together suggest the in- ference that the machine in question has a peculiar fascination for children of the ages of seven and four. Contributory § 128. Where there has been negligence on the must^bea part of the plaintiff which might have caused damage. damage, but which did not in fact contribute to the occurrence in question, there is no case of con- tributory negligence. As where a vessel coming CONTRIBUTORY NEGLIGENCE. 189 into collision was unprovided with side lights according to regulation, but it was proved that there being no look-out on board the other vessel ; this neglect could not have contributed to the col- lision, and the latter was held solely in fault. [ The Englishman, 3 P. D. 18.] § 129. To make contributory negligence a de- And proxi- . , - ' , mately so. fence, it must be the proximate cause, or at least such as to constitute (conjointly with the other) a proximate cause. If, therefore, a person by some negligence of his own has placed himself in the way of danger by collision with another, so that he himself becomes unable to avert the danger, but yet the other by the use of ordinary care may avert the danger, the latter will be liable if damage ensues. [Davies v. Mann, 10 M. & W. 546 (the oft-quoted donkey case) ; Tuff v. Warman, 2 C. B. (N. S.) 740 ; and in the Exch. Ch. 5 C. B. (N. S.) 573 ; L.B.Sf S. C. By. Co. v. Waltm, C. P., Feb. 10, 1866, W. N., p. 71.]. The case of Tuffy. War- man was that of a steamer running down a barge which had negligently got in the way and not ported. A similar principle was applied against a railway company whose servants broke down a bridge belonging to the railway of another company, by pushing against it a truck which had been somewhat negligently left by the latter com- pany so loaded that it could not pass under the bridge. \Radley v. L. ^ N. W. By. Co., 1 App. 190 CONTRIBUTORY NEGLIGENCE. Ca. 754.] For general considerations on the duty of a steamer meeting a sailing vessel, owing to the easier command which the engine affords over the former, see William Inman v. F. Rech and Others. [L. E. 2 P. C. Ap. 25]. The cases of col- lision between ships commonly depend on the express Admiralty rules which are framed having regard to the principle stated in the text. [77?e Owen Wallis, L. R. 4 A. & E. 175 ; Beal v. Mar- ehais, L. R. 5 P. C. Ap. 316; Union Steamship Co. V. Araca7i, L. E. 6 P. C. Ap. 127.] INDEX. [N.B. — The references are to the ^ages.] ABANDONING, case without reasonable notice to the client, is a breach of duty in solicitor, 101. ABBOTT, C.J., his remarks on the liability of attorneys for negli- gence, 102. ABSOLUTE DUTY, to keep premises in safe repair, 27. action does not lie for every breach of, 31. ABSTEAOT, liability of purchaser's solicitor laying before counsel part only of, 98. ACCIDENT, on railway caused by breaking of tire of wheel [Bedhead V. Midland By. Co.], 84. in riding, driving, &c., gives rise to questions as to ordinary negligence, 119. from nitro-glycerine remaining concealed in solid state after emptying liquid, 187. ACCOMMODATION WORKS, intended for benefit of the public generally, 35. where company boimd to construct, by way of contract with adjoining owner, 42. ACCOMMODATIONS, at railway station, what state of, is evidence of negli- gence against the company, 87, 88. ACCOED AND SATISFACTION, in lifetime of deceased a good plea to an action under Lord Campbell's Act [Beady. G. E. By. Co., 16 W. E. 1040]. 192 INDEX. ACCOUNT, of consignee, when goods are sent on, he is the person to sue for loss, 71. ACCUMULATION, of water in a reservoir [Fletcher v. Bylands], 46. of soil acting like a sponge and making plaintiffs house damp, 48. of ironstone refuse, which takes fire, ibid. of water in operation of quarrjdng, evidence of pre- caution admissible, ibid. of water for benefit of both parties, liability is for ordi- nary negligence only, 50. ACCUKACT, of records of title in Scotland relied on by purchasers for value, 45. ACT, (or omission) itself not properly described by the term "negligence," 2. but negligence a ground for imputing guilt to the author of the act or omission, 3. ACT or GOD, (or Queen's enemies) (see Casus, vis Majoe), excuses sheriff for an escape, 43. only can excuse for escape of dangerous thing harboured on land, 47, 52. (or Queen's enemies), excuses common carrier, 65. ACTIO PEESONALIS MOEITUE CUM PERSONA, applies at common law where there is no contract, 21. ACTION, arising out of tort commonly distinguished from one arising out of contract, 18. every, has its legal ground in wrong, 18. for damage not competent in every case where an indict- ment would lie, 31. does not lie against local board of health for damage owing to disrepair of parish road, 31. but does if guilty of misfeasance, or if premises vested in them, 31. does not lie against Postmaster-General for negligence of inferior servants, 46. duty of solicitor in conduct of, 100 — 105. by client against solicitor for negligence requires proof of negligence in fact, or circumstances from which negligence is implied by necessary legal inference, 105. INDEX. 193 ACTION— continued. for negligence, whereby the fund for distribution among creditors is diminished, may be maintained by assignee or trustee in bankruptcy, or by liquidator of company, 110. ACTIONABLE NEGLIGENCE, not constituted by failure to observe a self-imposed pre- caution, 59. not necessary for a Court of Equity to disallow costs, 107. ADDRESS, tender of goods at, of consignee, at reasonable hour, exonerates common carrier from liability as such, 68 ADMINISTEATION SUIT, rendered necessary by wilful neglect of duty by trustees, they must pay their costs, 113 ADMIRALTY COURT, in cases of contributory negligence employed the simple method of dividing the loss, 180. ADMIRALTY RULES, in cases of imminent collision, framed on principle that vessel most under command must give way, 190. ADMISSION in action, under Lord Campbell's Act, not conclusive in an action laid upon contract, 21. ADVICE, omission to send separate letter of, in regard to a draft, not negligence, 132. AGENT, consignor is deemed, for consignee to retain the carrier, when goods are sent on account and at risk of con- signee, 71 forwarding company in case of through traffic is, for the company who have made the contract of contract, 70, 88. action against, for negligence, may be maintained by assignee in bankruptcy of principal, if fund available for creditors has been diminished by the negligence, 110. for purchase of public-house held liable for negligence, although employer, by his advice, had himself examined the business [Smithy. Baxter, 15 L. T. (N.S.) 294]. solicitor liable for default of, 104. acting within the scope of his authority, renders prin- cipal liable for his negligence, 136. on account of the presumed control by principal over his acts, ihid. 194 INDEX. AGENT— cowfe'wMed. in case of damage by, acting "witliin the scope of Ms authority, the person damaged has the option of suing the principal or agent, 55. but cannot sue an intermediate agent, ibid. AIE-BUBBLE, in welding a tire of a wheel causing railway accident [Bedhead v. Midland By. Go.'], 84. ALDEESON, B., his definition of negligence, 7. ALTERNATIVE DANGER, incurred to escape danger arising out of negligence, does not imply contributory negligence [Adams v. Lane. & Tori. By. Co., 17 W. R 885]. AMERICA, telegraph companies in, deemed common carriers of messages, 71. AMERICAN, rule as to trespass by tame animals more severe than ours, 53, n. as to negligence of fellow-servant being regarded as a risk incident to the contract of service, the same as that in England, 149. ANCHOR, negligent damage to submarine cable by, 118. vessel in a fog ought to, as soon as proper anchorage ground is reached, 133. ANIMAL, liability of person keeping dangerous, 52-55. tame, 53. the subject of a contract of carriage, damaged through its proper vice, 67. carried by sea becoming restive from severe weather, question is whether reasonable precautions were taken, ihid. APPROVAL, goods sent for, consignor is the person to sue in case of loss, 71. AQUILIA, LEX. See Lex Aquilia. ASSIGNEE, in bankruptcy may maintain action for negligence whereby fund available to creditors is diminished, 110. INDEX, 195 ASSYTHEMENT, the name of remedy in Scotch law, which suggested Lord Campbell's Act for compensating the families of persons killed by accidents, 20, 92. ATTEMPTS to bite, evidence of dog's ferocity and of master's scienter if brought to his knowledge, 54. ATTENDANCE, of witnesses at trial, duty of solicitor to see to, 101. ATTOENEY AND CLIENT (see Solicitor and Client), 98—111. AUSTIN, his analysis of terms " negligence," &c., 2, 3. AUSTEALIA, [case of Moffatl v. Batemari], 121, 122. colony of Victoria, case of deposit of valuables with bankers [Giblin v. McMullen], 163. AUTHOEITY. See Scope op Attthokity. BAG, liability of innkeeper for loss of [Oppenheim v. White lAon Gompany'\, 81. BAGMAN, not entitled to special damage against railway company for loss of time in waiting for goods, 176. BAILBE, involuntary, carrier becomes, by refusal of goods at address of consignee, and as such liable for ordinary negligence only, 69. though involuntary, may incur liability by parting with control of goods without occasion [Hirst v. Botts], 128, 129. gratuitous, case of bankers with . whom securities are deposited for safe keeping [Giblin v. McMuUen], 163. for reward, where commission charged for collection of dividends, and bank had lien on the securities [Be United Service Company, Johnstone's Claim], 165. BAILMENT, sis kinds of, enumerated by Holt, C.J., 15. in delivery of a thing involving a duty of keeping it, ibid. Sir W. Jones' essay on law of, ibid. of thing lent, 25. of goods received by common carriers, 65-69. of gratuitous deposit, 162-167. 2 196 INDEX. BAILOE, in commodate responsible only for culpa lata, 163. BALLOT ACT, duty of presiding offiper under, 4.5. BANK, of mud at entrance of dock, sMp grounding on [Mersey Bocks, &c., V. Qibhsl, 35. " BANKEE, as gratuitous bailee of valuable securities deposited with him for safe keeping \_Giblin v. McMulle-al, 163-165. as bailee for reward [iJe United Service Go., Johnstone's Claim], 165. BANKING COMPANY, action by, against directors for negligence, 110. BANKEUPTCY, what liabilities are debts provable in, 21. assignee or trustee in, may maintain action for negli- gence whereby fund for distribution among creditors has been diminished, 110. BAEGB, plying for the general customer, implies the liability of common carrier, 78. run down by steamer — the owners of the latter guilty of negligence if the steamer could have averted the collision by ordinary care, 189. BAEEISTEE, irresponsibility of, commonly attributed to the circum- stance that his fee is an honorarium, 46. privilege of, altogether anomalous, ihid. BENEFIT, of the transaction determines the degree of diligence re- quired, 5, except in mandate, 11. " gross negligence " improperly used in case of a con- tract for mutual, 15, 16. of borrower, involves liability for slight negligence, 25. of both parties is the criterion of invitation, 63. contemplated in contract of common carrier, 65. BENEFIT OF BAILOE, deposit is for, and therefore implies a slighter responsi- bility than that for ordinary negligence, 163. BILL OF EXCHANGE, notary's function in the protest of, 44. (French) duty of attorney suing upon, to ascertain whether it has been indorsed according to French law [Long V. Orsi\ 101. INDEX. 197 BILL OF LADING, contains the conditions qualifying the responsibility of the shipowner, which, except so far as qualified by that document, is that of a common carrier, 77. " Not responsible for leakage, &c." [Brass v. Mait- land, (fee], ihid. BLANK, left in cheque so as to facilitate forgery, a negligent act disentitling party to complain of deceit practised on him as against innocent person deceived, 113. BOAED OF HEALTH. See Looal Board. BOEEOWEE, in commodate bound in exact diligence, 7, 10. but only in proper commodate, i.e., gratuitous loan, 7. liable for everything short of casus, 25. BEACTON, Eoman law embodied in his work cited by Holt in Coggs V. Bernard, 15. BEEAKING, of the tire of a wheel, accident Icaused by [Bedhead v. Midland By. Co.], 84, 85, 86, . BEEAKING DOWN, of railway carriage is prima facie evidence of negligence against the company, 87i BEICK, falling from railway bridge [Kearney v. L. B. & S. C. By. Co.\ 28. BEIDGE, of railway over public road, action against, for negligence in not repairing [Kearrley v. L. B. & S. C. By. Co.], 28. over railway near level crossing, obstructing the view, seems to require some extra precaution in trains ap- proaching the place, 60. case of children sitting on, by railway, as train was coming up [Singleton v. 0. E. By. Go.'], 184. BEIEF, neglect of attorney to deliver, 101. BEUSHWOOD, negligence in burning [Serandat v. Saisse], 161. BUILDINGS, when is there a right to support for, 33. 198 INDEX. BUILDER, not liable for workmen leaving a plank resting against gates, which, without his knowledge, were shut at night, and the plank on their being shut causing damage, 134. BUEDEN OF PROOF. See Evidence ; Onus. CAB, duty of person letting cab for hire to take reasonable precaution to supply reasonably fit horse, 135. owner of, responsible for negligence of driver, 161. CAMPBELL'S (LORD) ACT (9 & 10 Vict. c. 93), 19, 20, 92, 155. CARE. See Due Caeb ; Reasonable Caee ; Oedinaet Caeb. on the part of the manufacturer of the carriage, guaranteed by a railway company as carriers of passengers, 86. in preparation of case for trial, liability of attorney for want of, 100. duty to take, for fencing dangerous machinery, 154. warranty of, to ensure seaworthiness of ship imported by statute into contract with seamen, 157, 158. CARGO damaged by ship grounding at entrance of dock [Mersey Docks, dtc, V. Oibhs], 35. CARLISLE TABLES, evidence in assessing damage under Lord Campbell's Act, 21. CARMAN, when in course of employment — Whatman v. Pearson], 140. Storey v. Ashton], 141. Mitchell V. Crassweller], 142. Bayley v. Manchester, dtc. By. Co.], 144. Whiteley v. Pepper ; Bayner v. Mitchell], 145. CARRIAGE, RAILWAY. See Railway Caeeiagb. offer of seat in, implies liability for ordinary negligence only, 121. CARRIAGE OF GOODS, by land as well as sea, the principle of responsibility deduced from the Praetor's edict, " NautcB caupones, &c.," 80. by sea, mode of delivery to exonerate from liability, defined by statute, 66. in contract for, warranty of seaworthiness of vessel is implied, 77. INDEX. 199 CAEEIAGE-EOAD, public, crossed by railway at a level, 57, 60. CAEEIER. See Common Caeeikb. CAEEIEE OF PASSENGEES, by rapid conveyance warrants reasonable or due care in the construction of the carriage, &c., 83-86. not an insurer, 85. for hire distinguished from person giving seat in his carriage to another, 121. CAET WITH HOESE, negligently left by workman intrusted with them at a place a mile out of the line of his work [Whatman v. Pearson\ 140. left unattended in a public place affords presumption of intentional mischief , 186. CASUAL INQUIEY, attorney not responsible for answer to, to person not his client, 110. CASUS (or accident) used by the Eoman lawyers to negative culpa or dolus, 4. borrower not liable for, 7, 25. excused under lex Aquilia, 8. Negotiorum gestor sometimes liable for, 12. proof of, exonerates, where prima, facie case of negli- gence, 23. exonerates (perhaps) for escape of dangerous thing brought on premises, 47, 52. the negation of culpa levissima, 52. accident caused by flaw in tire of a wheel which no care or foresight could prevent [Bedhead v. Midland By. Co.], 84. CATTLE, straying on highway adjoining a railway [Manchester, dec. By. Co. V. Wallis], 39. and sheep protected by statute from worry by dogs, 54. carriage of, by railway, stipulation against damage by negligence, unreasonable, 74. owner of, assisting in discharging, does not undertake risk from negligence of railway servants, 162. CATTLE SHOW, special damage for goods being sent too late for, 177. 200 INDEX. CAUSE, proximate and remote (see Peoximate Cause ; Eemote Cause). CAUSE OP ACTION, when laid upon contract distinct from that under Lord Campbell's Act, 21. CEETIFICATED MANAGER, employment of, in coal-mine is evidence that the owner has complied with the statute in taking reasonable means, &c, 156. CHANCEEY, Court of, sometimes disallowed costs on grounds slighter than actionable negligence, 106. e.g., on ground of failure in rigid adherence to duty by inserting power of revocation in a voluntary deed, or insisting on a party, in a case where undue influence might be suspected, being sepa- rately advised, 107. would not allow solicitor to take advantage of his own negligence, ibid. in what cases of negligence had Court of, jurisdiction, 108. it seems only for such crassa negligentia as Equity construes to be fraud, 108, 109. attempt to enforce liability in, for mere negligence, a failure [Overend, Qurney, & Co. v. Gurney, <£c.], 108, 111. jurisdiction by petition or motion to recover costs, 108, 109. CHANDELIER, in public-house, negligently hung ; person who under- took the hanging of it not responsible to stranger damaged by it [Collis v. Selden], 178. CHAETEEPARTY including demise of ship transfers the responsibility for goods carried, 78. CHEVAUX DE ERISE, put up as barriers to private road [Clark v. Chambers], 173. CHILD, YOUNG, killed at level crossing, where no gate, evidence of neg- ligence against the company, 58. negligence of, considered, 184. negligence of person under whose care it is, ibid. getting into mischief, 185. INDEX. 201 CHILD, YOVNG— continued. playing with cart left unattended in public place not contributory negligence [Lynch v. Nurden], 186. playing with oil-cake crushing machine left exposed in public place, opposite decisions of English and Scotch Courts [Mangan v. Atterton, Campbell v. Ord], 188. CIVILIANS, modern, their rules concerning the degrees of liability, 9. CLASSICAL JUEISTS, their criteria for imputing liability, 5. reasons for adhering to their language, II. CLERK, attorney liable for default of, 105. CLIENT. See Solioitob. COACH. See Mail-coach. COAL-HOLE, negligently left open, 145. COAL-MINE, accident in ascending shaft of [Bartonshill Colliery Cases'], 148. shaft of, in unsafe state [Brydon v. Stewart], 154. COAL-MINES EEGULATION ACT, burden thrown on owner of provision of reasonable means for publishing rules, &c., 155. COLLABORATEUE. See Eellow-woekman ; Eisk incident TO Sbevice. COLLATEEAL OPEEATIONS, care in, not warranted by railway company, 89. COLLIEEY PEOPEIETOES, neglect of statutory precautions by, gives right of action, 41. COLLISION, train causing, presumed to be under control of company on whose line it is, 89, 90. between ships, gives rise to questions as to ordinary negligence, 119. by negligence, master of ship acting within scope of authority makes his owners liable for, 137. although deviating to perform salvage services, 147. contributory negligence remotely causing, is no defence if defendant, by immediate use of ordinary care, might have avoided it, and plaintiff could not, 189. between ships. Admiralty rule in cases of, retained by the Judicature Act, 1873. . 180. 202 INDEX. COMMEECIAL TEAVELLEE, not entitled to claim special damage for delay of box unless he has given notice of the contents, and their purpose, 176. COMMETTANT ET PE^POS:^, French law regarding liability of the former [Serandaf V. Saisse], 161. COMMISSION. See Mandate. and omission distinguished, 120. ordinary negligence commonly inferred from the former, ibid. charged by bankers on collection of dividends a reason for inferring that they are liable for negligence in losing securities intrusted to them, 165. C0MMISSI0NBE8 having statutory duty to maintain sluice held liable to proprietor of land damaged [Coe v. TFiise], 37, 139. COMMODATUM, or gratuitous loan — diligentia qualem diligentiasirrms pater- familias, &c., 7. proper, is gratuitous, 10. is a contract re in Eoman law, 13. typical instance of a contract involving liability in case of culpa lemssima, or slight negligence, 25. responsibility of the hailor is only for culpa lata, 167. COMMON CAEEIEE, his liability an exceptional case, 16. nature of his contract, 65. exonerated only by act of God or Queen's enemies, ibid. liability as such does not terminate until delivery of the goods to consignee, or lapse of reasonable time after notice to him of their arrival, ibid. liability restricted where peculiar rigk inherent in goods carried, 66. if goods refused at address, notice to be given to con- signor, and carrier only liable as involuntary bailee for ordinary negligence, 69. railway companies as, under joint arrangements, 70. must be sued by the person at whose risk the goods are, 71. telegraph companies considered, in America, ibid. but not in England, ibid. liability of, restricted by Carriers Act, 72. law relating to, at one time evaded by railway companies giving notice of conditions, 73. but this practice controlled by Eailway and Canal Traffic Act, 74. INDEX. 203 COMMON GABHIE'R— continued. master of general ship prima facie is, 77. queere, whether shipowner is (subject to exception in biUs of lading), 78. his responsibility said to arise from the custom of the realm, 79. not liable for special damage arising from delay of goods without notice of the purpose for which they are required, 177. COMMON INTEREST is the criterion of invitation as distinguished from licence, 63. COMMON STAIE in Edinburgh, landlord responsible for repair of, 27. COMPANY, where assets of, have been diminished by negligence of directors, liquidator may sue them, 110. liable for acts of officers within sphere of duty, 136. cannot be made answerable for act of servant which is ultra vires of the company themselves, ibid. COMPROMISE, ' attorney may enter into, bond fide, and for benefit of client, 104. but not in defiance of client's express prohibition, CONCEALED DANGER {see Teap), 64, 119, 187. CONDITION in contract for carriage of goods, what is a reasonable, 74, 75. stipulating exemption for loss on railway not worked by the contracting company, not struck at by Railway and Canal Traffic Act, 76. CONDUCT, of cause, duty of solicitor in, 100-104. CONFIDENCE, induced by undertaking gratuitous service is a legal consideration for the performance, 14. , when misplaced, has in certain cases a similar effect to negligence, 128, 131. CONSENSUAL CONTRACTS, in Roman law, 18. CONSIDERABLE NEGLIGENCE, sometimes meant when the words "gross negligence are used, 15-17. 204 INDEX. CONSIDEEABLE NEGLIGENCE— cowiJwMed. is a more appropriate term than gross negligence to express the kind of negligence for which a solicitor is liable, 103. not sufficient ground for suit in Chancery, 109. CONSIDEEATION, presumed from deed under seal, 14. valuable, a criterion of the negligence inferring lia- bility, 6. in contract of hire, includes undertaking the risks inci- dent to the service, 147. a valuable, in case of securities deposited with bank, is reason for inferring that they are liable for ordinary negligence, 165. CONSIGNEE, delivery of goods, or lapse of reasonable time after notice to, can alone terminate the responsibility of common carrier, 68. is the party to sue for failure in delivery of goods, if the goods, as between him and the consignor, are at his risk, 71. CONSIGNOE, notice usually given to, when goods are refused at the address of the consignee, 68, 69. is the person to sue for loss, if goods are at his risk, 71. CONSTEUCTION and maintenance of public works, duty of, 35. CONSTEUCTIVE FEAUD, of persons in a position of confidence, 108. case of Turquand v. Marshall is a case of constructive fraud, or culpa lata aequiparata dolo, 111. CONTEACT, for sole benefit of obligor " recipit dolum tantum," 5. for mutual benefit, " recipit dolum et culpam," ibid. conception of, in Eoman and English law, 12. obligations arising out of, how classified by Boman lawyers, 13. under English law, viewed as promise for a considera- tion, 14. for mutual benefit, term " gross negligence " improperly imported into, 15-17. alone contemplated by Eoman lawyers in laying down rules as to culpa, &c., 17. INDEX. 205 CONTEACT— continued. and tort, conceived by English lawyers as forming separate classes of actions, 18. not logically opposed to delict, 18. and tort, the distinction between not so important as formerly, 19. and tort, the distinction still significant in cases arising under Lord Campbell's Act, Md. 20. and tort, the distinction formerly prevailed in some questions of costs, 19, n. liability arising " otherwise than by reason of," in regard to debts proveable in bankruptcy, 21. of insurance must be express, 22. to carry passengers (see Caeeiek op Passbngees). not necessary to, that passenger should have taken a ticket, 90. risk incident to (see EiSK inoident to Conteact), excludes the responsibility implied by invitation, 147-162. to carry for hire (see Common Caeeiee). for carriage, where goods under, are transferred from the contracting company to another, there is no privity between the consignor and the second company [Bristol and Exeter Railway Company v. Collins\, 70. unless the arrangements between the companies afford evidence of agency, 71. to transmit message by telegraph, infers no privity between telegraph company and receiver of mes- sage \Playford v. U. K. Tel. Co.], ibid. in America, the company is said to be a common carrier of messages, ibid. for carriage, railway company making, is liable for carrying it out, although the transit goes partly over another line, 70. special, for carriage of goods controlled by Eailway and Canal Traffic Act, 73. what special contracts satisfy conditions of this Act, 73-76. special, to carry goods by sea, in order to exempt from liability for negligence must expressly say so, 77. to carry passengers considered, 83. to establish this contract not always necessary to have a ticket, 90. by rs^lway company to carry over the line of another company, renders the first company liable for the negligence of the second, 88. contemplating mutual advantage, where no warranty express or implied, requires ordinary care, 94. 206 INDEX. GONTUAGT— continued. of employment for hire, negligence of fellow-workman is deemed a risk incident to, and therefore no ground for action against the master, 147. this principle depends on the contract of service, and not on the fact of common work [Warhurton v. G. W. By.], 150. of service between owner of ship and seamen, now implies, by statute, warranty by owner that care is used that ship shall be seaworthy, 157, 158. person voluntarily associating himself in work is in no better position than the hired workman, 162. of carriage, where special damage claimed under, held too remote [Woodgery. G. W. By. Co.], 176. British Oolmnhia Saw-mill, tfec], 177. involves duty towards third person, 178. CONTRACTOR, ' negligence of, imputed to Mersey Docks trustees, 35. surveyor of highways not responsible for, 32. liability for omission of, where dangerous thing has been harboured on land [Fletcher v. Bylands\, 46. shipowners as common carriers may be liable for negli- gence of, 77. railway company, as carriers of passengers, may be liable for negligence of, 93. opening a highway imder statutory power, and afterwards properly reinstating, not liable for subsequent subsi- dence of materials \Hyams v. Webster], 134. engaged on unfinished building, not liable to custom- house officer damaged in passing over it [Castle v. Parher], ibid. held liable for workman entrusted with horse and cart, with which he went home to dinner, contrary to orders, a mile out of the line of his work, and negligently left cart in the street, whereby damage ensued [Whatman V. Pearson^ 140. is liable for servant lent to him to be under his control, 137. working at joiner work upon unfinished house, damaged by negligence of mason's workman, can he sue the owner of the house, except on the ground of personal negligence? 152, 153. maxim respondeat superior does not apply to person employing, 158-164. but still applies so as to make the contractor respon- sible for those employed by him, 159. but employer responsible, if the damaging act is the very act the contractor was employed to do, ibid. or a necessary consequence of it, ibid. INDEX. 207 GONTRAGTOB— continued. employment of, by person owing a duty, does not exone- rate him if the contractor neglect it too, ibid. to provide mail coach does not warrant the coach to driver employed by contractor for horsing the coach, 179 CONTRIBUTORY NEGLIGENCE, qiisere, will it exonerate a person failing to restrain a dangerous thing which he harbours ? 52. considered, 179-190. practice has been different in Admiralty and Common Law Courts, 179. question whether based on personal bar to action, or on principle, that negligence must be proved as proximate cause, 180. if shevm on plaintiff's case judge may nonsuit, 181 in some American cases held that damage is divisible, 182. but this doctrine repudiated in England, 183. of servant, with notice of tackle being in dangerous condition, 183. in cases of level crossing, 184. ship in tow getting aground in a fog, 184. application of doctrine to case of young child IMangan V. Atterton, &c.], ibid. child "identified " with person under whose care it is, 185. railway inspector " identified " with company to which he belonged, ibid. of ordinary degree, no answer to intentional wrong or gross negKgenee from which the law presumes intention, 186 e.g. leaving horse and cart unattended in public place, ibid. setting spring guns, &c., ibid. Scotch case of trespasser exploding can of nitro- glycerine, 187. might not the finding of the jury in Mangan v. Atterton have been supported on the ground that the oil-cake crushing machine in a public market place was a trap for children, 188. must in fact contribute to the damage, ibid. to be a defence, must be proximate cause, 189. not a defence if at last the defendant, by use of ordinary care, could have avoided accident and the plaintiff could not ; e.g. driving over donkey, steamer running down saiHng-vesnel or barge, ibid. CONTROL of property, liability of a person parting with, to the loss of another person interested, 128. 208 INDEX. COliiT'ROL— continued. presumed, over acts the basis of the liability of master for servant, principal for agent, 136. so if servant is lent to a contractor, to be under his control, the contractor is responsible for him and not the lender, 137. in cases where more than ordinary care is demanded, person may be held liable for those over whom he has no control, 135. of operations, presumption that it was not parted with, where gangs of Indians were employed to burn brush- wood \_Serandat v. Saisse'\, 164. COEPOEATION for an undertaking to be used by the public paying tolls, liable in exact diligence, 35-37. (Case of Mersey Docks, &e. v. Qibbs), ibid. liable for negligence of their servants, 139. COSTS abortively incurred through negligence of solicitor, his liability for [Potts v. Button\, 98. positive evidence of negligence not required on the part of client resisting payment of, 105. what circumstances will, in a question with solicitor, form ground for resisting payment of, ibid., 106. causing suit to be lost through negligence, 105. previous steps in suit becoming useless by negligence, ibid. work useless, whether through wilful error, or inad- vertence, or inexperience, 106. work partially useless, cross-action requisite, ibid. sometimes disallowed by Court of Chancery on grounds slighter than actionable negligence, ibid. 107. recovered against solicitor whose negligence has caused them, by summary application to the Court of Chan- cery, 109. of administration suit rendered necessary by wilful neglect of duty by trustees must be paid by them, 113. COUNSEL. See Barrister. COUNSEL, solicitor for purchaser asking counsel's advice on title, and drawing conclusion from deeds instead of ab- stracting them, does so at his peril, 103. opinion of, fairly obtained, generally speaking, exonerates solicitor who acts on it, ibid. duty of attorney to retain and instruct for trial, 101. INDEX. 209 COUNSEL— cowiinwed opinion of, does not exonerate attorney on points with which he is presumed to be familiar, 103. must be obtained on a case bond fide and fairly stated, ibid. advice of, does not exonerate attorney entering into a compromise against client's express prohibition, 45. COUNTY COUET ACTS, provision as to costs in Superior Courts, now abolished by Judicature Acts, 19, n. COUESE OF EMPLOYMENT, master liable for servant for acts done in, 136. company liable for servants' acts in, provided not ultra vires of the company, 139. to define what is, necessary to consider the decided cases, 139 Whatman v. Pearson (C. P.), going with cart and horse home to dinner against orders, 140 Storey v. Ashton (Q. B.), new and independent journey, 141 Mitchell V. Crassweller, observations of Manle, J., 142. dicta of Parke, B., in Joel v. Morison, detour to call on a friend, frolic of his own, 143. railway porter violently pulling passenger out of car- riage [Bayley v. Manchester, &c By. Co.], 144. foreman of stevedores unloading iron rails, 145. carman leaving coal-hole open, ihid. principle of master's liability is his presumed control over the servant's acts, 136, 151. COUET OF CHANCEEY. See Chancery. COVENANT incorporated in statute authorizing a public undertaking, 42. unusual, solicitor liable for allowing his client to execute, without explanation, 98. COWS poisoned by yew, got at by cattle through gap in fence caused by tree negligently felled, 32. by fragments of neglected fence, 33, 172. sold to plaintiff warranted free from infectious disease, but having in fact foot and mouth disease, infected plaintiffs cattle, &c., plaintiif held entitled to recover whole damage, 173. 210 INDEX. CEASSA NEGLIGENTIA. See Gross Negligbnob. use of the term rectified, 15-17. use of the term as applied to negligence of attorneys explained, 103. in the sense of negligence which Equity construes to be fraud, formed ground for bill in Chancery, 108. GEEDITOES, action to recover loss by negligence may be maintained for benefit of, by assignee and trustee in bankruptcy, or by company in liquidation, 110. CEOSSING. See Level Cbossing. CULPA, used by the Eoman lawyers in same sense as negligence used by ours, 4. distinguished from dolus and casus, ibid. where transaction for mutual benefit, each liable for, 5. et diligentia, where for benefit of obligee, ibid. recipient of commodatum liable for, if he unnecessarily incur risk, 7. mandatory responsible for, 11. CULPA LATA. See Crassa Negligentia; Gross Nbgli- GENOB. CULPA LATA distinguished from ordinary negligence, 4. is great or gross negligence, ibid. > by convenient fiction construed as dolus, 9. sometimes loosely used by BngUsh lawyers, 15-17. use of term as applied to negligence of solicitors, explained, 103. case of Turquand v. Marshall (breach of trust by direc- tors of company), 116. Moffatt V. Bateman (case where a person gives seat in carriage to another going on common errand), not a case of, in the strict sense of the term, 121, 122. this head of subject considered, 162-169. if not intention, must be present in order that injury may be inferred apart from privity of contract or proximity of time and place, 178. contributory negligence (of ordinary kind), no defence to action grounded on, 186. CULPA LEVIS, or CULPA (simple) (see Ordinary Negli- gbnob). opposed by way of comparison to culpa lata, 4. correlates to a middle sort of diligence, 9. this head of subject considered, 94-162. INDEX. 211 CULPA LEVISSIMA. See Exact Diliqbnob. distinguished from ordinary negligence, 4. correlates to diligentia or exacta diligentia, ibid., 10, 14. liability inferred by, under lex Aquilia, 4, n., 7. cases in English law considered, 25-94. particular grounds — (a) Commodatum or loan, 25 (/J) Occupier's obligation in question with stranger to keep tenement in safe repair, 26. (y) Trustees of public undertakings on which tolls are levied, 35. (8) Public officers having duties for which they are entitled to demand fees, 42. (e) Harbouring dangerous thing, 46. {q Occupier's obligation to persons coming on ground by invitation, 61. (17) Common carriers, 65. (ff) Carriers of passengers by rapid means of transit, 83. (t) Letting seats in a race-stand, 93. as a ground of liability equivalent to implied contract of warranty, 23. in cases where, applies, employment of a competent con- tractor is not enough to exonerate, 160. CUEVE in a line of railway near a level crossing \_Bilhee v. Lon- don and Brighton By. Co.], 60. CUSTOM of the realm said to regulate the duty of a common carrier, 65, 80. CUSTOM-HOUSE OFPICEE, sugar-bags falling on, from lift \^Scott v. London Dock Company], 29. damaged in passing over unfinished building— no redress, 134. DAMAGE. See Special Damage. DAMAGES, measure of, under Lord Campbell's Act, based on calcu- lation of pecuniary loss {see Mbastjee op Damages), 92. DAMNO, LEX AQUILIA DE. See Lex Aquilia. DAMNUM ABSQUE INJUEIA said to result when damage is done without negligence, by things done in pursuance of statutory authority, 51. P 2 212 INDEX. DANGER which, might be averted by defendant by use of ordinary care, although more remotely caused by negligence of plaintiff, does not ground plea of contributory negli- gence, 181. DANGEEOUS premises or tenement, liability of occupier and landlord, 26. similar to duty of corporation for public purposes to maintain their works, 37. entrance to dock [Mersey Docks, &c. v. Gihhs\ ibid. thing harboured on land, liability for [Fletcher v. Bylands], 46. animal, liability of person keeping, 52. mode of doing work, evidence of negligence, 118. machinery, duty to take care to fence, 154. operations, master of workmen employed in, bound to take reasonable precautions for their safety, 154. defect known to lender of thing, implies culpa lata, and renders him liable, 167. condition of tackle known to servant using it is con- tributory negligence exonerating the master, 183. DAEK night, on, trains approaching level crossing should whistle, 60. place, damage by falling in, on strange premises, 62, n. DEATH of a human being no ground of action at common law, 20. DEBENTURES, deposited with a bank for safe keeping — [Giblin V. McMulleTi], 163. [Be United Service Company'], 165. DEBTS provable in bankruptcy, what liabilities are, 21. DECREE of the Court, where there is a mistake in drawing up, duty of solicitor to get rectified immediately, and liability for expense caused by failure to do so, 100. DEDICATION to public purposes of profits of imdertaking does not exonerate from duty of maintaining works, 37. of way to public, infers no warranty of its being in safe repair, 168. DEED under seal, grounds presumption of consideration, 14. INDEX. 213 B'Em)— continued. under seal, where necessary, solicitor preparing agree- ment instead, held guilty of negligence [Parker v. Bolls], 99. DEEDS. See Title Deeds. DEFECT. See Danqbbotjs Defect ; Latent Defect. DELICT, not logically opposed to contract, 18. DILIGENCE. See Exact Diligence. DILIGENTIA QUAM IN SUI8 EEBUS, &o., in partnership, 6. in deposit, 166. DELIVEEY of goods to consignee (or lapse of reasonable time after notice to him of their arrival) terminates the liabUity of the common carrier as such, 66, 68. DELIVEEY ORDER indorsed without occasion to a person not entitled, incurs liability, 129. DEMISE OF SHIP by charterparty transfers the responsibility for goods carried, 78, 138. DEPOSIT of securities for safe custody with bankers, 163-165. case where held a gratuitous bailment, and negli- gence rebutted by fact that they kept them in a strong room with their own securities [Giblin v. McMullen], 163. case where considered bailees for reward distin- guished [iJe United Service Co.], 165. but in that case damage claimed held too remote, 166. DEPOSITUM, was gratuitous in Eoman law, and therefore the depositee " preestat dolum tantum," 5. where merces was received, was not properly depositum but loeatio, 6. was classified as a contract made re, 13. in, Eoman lawyers held bailee liable only for dolw (intention), or culpa lata, which the law refuses to distinguish from intention, 163. DEVIATION (or detour), master liable for act of servant notwithstanding, 141- 144. owner liable for act of master of ship notwithstanding, 147. 214 INDEX. DILIGENCE, the opposite to negligence, 3. DILIGENTIA implies that something less than culpa levis vTOuld infer guilt, 4. required where transaction is for sole benefit of obligee, 5. required frtim recipient of eommodatum (see Exact Dili- gence ; Culpa Levissima), 7. DIEECT0E8, in what cases and how sued for negligence, 108. of insolvent company may be sued by liquidator for negligence whereby the fund available for creditors has been diminished, 110. are a kind of trustees. 111. their duties and liabilities arise out of mandate, ibid. liable for negligence in the ordinary sense of the word, 112. whether liable for being defrauded depends on whether the fraud was calculated to deceive a person giving a due amount of attention, ibid. question whether less attention due from, than from trustees, 114. reasons for holding their responsibilities at least equal to that of trustees, ibid. actions against, by individual shareholders distinguished from actions by the company, 116. no privity of contract in the former case, and therefore only liable for actual fraud, 117. summary remedy against, by 165th section of Companies Act, 1862.. ibid. company liable for negligence of, acting within their powers^ 139. DIVISIBLE, American decisions making damage, repudiated in Eng- land, 182, 183. DOCK, damage to ship grounding at entrance of [Mersey Docks, de. V. Gibbs], 35. company, damage through defective gangway provided by [Smith V. London and St. Katharine Docks Company], 64. DOG, liability of person owning or harbouring, 54. worrying sheep or cattle, ibid. what facts are evidence of knowledge of dangerous character of, 54, 55. INDEX. 215 DOLUS distinguished from culpa, and signifies intention, 3. where transaction for benefit of obligor, obligee liable only for, 5. et culpa, where for mutual benefit, ihid. et culpa et diligentia, where for benefit of obligee only, ihid. inferred by a fiction from culpa lata, 9. et culpa lata, the lowest obligation of indemnity, 24. culpa lata aequiparata dolo considered, 162-169. (including culpa lata), by the Boman lawyers, the bailee in deposit considered liable only for, 163. DOMESTIC and personal relations, duties arising from, arise out of neither contract nor delict, 18. DONKEY case, the oft-quoted [^Davies y. Mann"], 189. DOOE of railway carriage, negligence in leaving open \_Gee v. Met. By. Co.], 124. negligence in shutting [Fordham v. L. B. & S. C. By. Co.), ihid. DEAINAGE works, damage by flooding of land owing to negligent construction of [^Collins v. Middle Level Commissioners], 170. DEIFTING from moorings in a storm by accident [Doward v. Lindsay], 23. DEILLING hole in gas-pipe, damage by negligence in [^Cleveland v. Spier], 118. ' DELVING, riding, &c., give rise to questions of ordinary negligence, 119. case where a person gives a seat in carriage to another going on common errand, positive evidence of negligence necessary to infer liability, 121. not furnished by mere fact of the kingbolt being broken, the carriage having been periodically examined, ibid. careless, by a servant in course of employment renders master liable, 136. servant with horse and cart going home to dinner out of the line of his work and against orders [Whatman v. Pearson, C.P.], 140. new and independent journey [Storey v. Ashton, Q:B], 141 . 216 INDEX. BHIVING— continued. Mitchell V. Grassweller], 142. Joel V. Morison\ frolic of his own, 144. DEY SEASON", in, grass-cuttings beside railway ignited by passing engine and spreading fire to a distance, evidence of negligence, 169. DUE CAEE, (only) warranted by carrier of passengers by railway \B,edTiead v. Midland By. Co.~\, 86. on the part of a railway company warranted by a com- pany having running powers over their line, and contracting to carry a passenger over it, 88, 89. DUTY to keep premises safe and conduct operations safely, 26. to use reasonable care in keeping bridge in repair, meaning exact diligence, 28. to make and maintain public works, for the use of which tolls are levied, 35-42. of public officers, 42-46. of sheriffs, 43. of messengers-at-arms, ibid. of notaries, 44. of keepers of Scotch registers, 45. of presiding officer under Ballot Act, ihid. to restrain dangerous or noxious thing brought on pre- mises, 46-52. to reinstate road broken up for a temporary purpose, 56. imposed by statute upon railway companies to place watch- men at level crossing of a public carriage way, ibid., 57. but not at a level crossing over a footway or private carriage way, 58. not implied in such case at common law, ihid. self-imposed precaution does not create, 59. of carriers of passengers by fast conveyance, 83-90. no, on railway company to make strict examination of through traffic waggons, 86. of persons constructing and admitting the public for hire into stand for viewing public exhibition \_Francis v. Goclcerell, 93. of attorney or solicitor to client {see Solicitor), 98-111. of trustees, 111-114. of directors of companies, 114-118. of master of ship in regard to goods damaged by excepted perils, 132. INDEX. 217 BVTY— continued. of master to select proper persons to superintend work, 154. and to use care that dangerous machinery is fenced, ibid. how onus discharged in proving performance of, ibid., 155. in some works, by statute, to fence machinery, 155. of shipowner, by statute, to take care that ship is sea- worthy, 157, 158. person neglecting, not exonerated by having employed a contractor who also neglects it, 159. this holds in cases where the law demands more ordinary care, or where less than ordinary negli- gence infers liability, 160. sphere of (see Course of Emplotment). EATAGE of oxen or sheep trespassing, owner liable for, 53, n. EMPLOYMENT. See Course op Employment. for hire (see Hire), in contract of, hirer not responsible for risks incident to the contract of service, 147 EMPTIO VENDITIO, a consensual contract in Eoman law, 13, ENGINE. See Locomotive Engine. ENGESTEEE, liability for omission of, where dangerous thing has been harboured upon land, 47. ENGLISH LAW, conception of contract contrasted with that in Boman law, 12, 18. regards actions arising out of tort (or wrong) as a separate class, 18. this distinction illogical, ibid, EQUITABLE TITLE, advantage of priority in time affected by misplaced con- fidence or negligence, 131. EQUITY. See Chancery. postpones security of the person who, by negligently parting with control of a thing, has enabled another to commit a fraud [Bice v. Bioe, dc], 131. EEEAND, servant on, of master, and not on his own frolic, renders ' master liable for his negligence [Storey v. Ashton'], 141. carman returning from, instead of putting up his horse driving off to oblige a fellow-servant [Mitchell v. Crassieeller], 142. 218 INDEX. EEEONEOUS iuformation given in answer to casual inquiry of a soli- citor, by a person not his client, solicitor held not responsible for, 110. EREOE of judgment on nice points on law, solicitor not liable for, 101. EESKINE, PEOEESSOE, his rules concerning the degrees of liability, 9, 10. ESCAPE, liability of sheriff for, 43. liability for, of dangerous thing harboured on land [_Fletcher v. Bylands], 46. of sewage, 49. ESHEE, plaintiff taken to, instead of to Hampton and having to walk [Eobhs V. L & S. W. By. Co.], 175. EVIDENCE, function of a notary in regard to, 44. admissible, of precautions taken in the operation of quarrying by which water is accumulated, 48. of dog's ferocity and owner's scienter, 54, 55. property in barge is prima, facie, that barge steered by defendant's servant, 147. EVIDENCE OF NEGLIGENCE, brick falling from railway bridge [^Kearney v. L. B. & S. G. By. Co.], 28. sugar bags from lift [^Scott v. London Bock Co.], 29. not furnished by omission to place watchmen at level crossings where not obliged by statute, 59. but failure to use statutory precaution is, ibid. what is, in a train approaching a level crossing on rail- way, 60. onus of proof may be shifted by special contract in bill of lading [e.g. " not responsible for leakage," &c.), 77. prima facie (see Peima Facie Evidence), furnished by breaking down of carriage, &o., 87. when afforded by defective accommodations at railway station, 88. traiu causing collision, presumed to be under control of company on whose line it is, 90. positive, required in cases where ordinary degree of care only is owed, 94. in action by client against solicitor, 105 when client resists enforcemetit of solicitor's bill of costs, ibid. INDEX. 219 EVIDENCE OF NEGLIGENCE— cowiiMwed. in cases of ordinary negligence some positive evidence of negligence is necessary, 29, 94, 118, 121. by adopting dangerous mode of doing work, 118 by damaging a submarine cable in hauling up anchor, ibid. positive, required in case where a person gives a seat in his carriage to another, 121. not furnished by fact of kingbolt breaking, 122. at least presumption rebutted by proof that carriage had been periodically examined, ibid. in leaving open or shutting doors of railway carriage, 124. where precaution of using a kicMng strap not adopted, 125. not sufficient, where servant of railway company in shutting gates at night was damaged by falling of a plank left resting on gates by builder's workmen l^Pearson v. Pluchnett], 134. leaving horse and cart in street unattended — Whatman v. Pearson], 140. Lynch v. Nurdeii], 186. where grass cuttings and trimmings of hedges beside a railway, in an exceptionally dry season, were ignited by a passing engine, and spread fire to a considerable distance [Smith v. London & S. W. My. CV>.], 169. in case of securities deposited with a bank for safe keeping [Giblin v. McMuUen], 163. where bank are bailees for reward [Be United Service Co.\ 165. in case of bailor in commodate, 167. in case of way dedicated to public, 168. EVIDENCE OF OWNEESHIP of vessel, prima facie, in a question of negligence, fur- nished by the ship register, 78. ' EX CONTRACTU— EX DELICTO, obligations arising, 12. the sharp line drawn between these by Eoman lawyers obscured the extension of the rxiles of culpa, &c., to the latter, 18. the distinction illogical, ibid. rights difficult to classify under either are restitution, rights arising from the domestic relations, and from possession, 18. EXACT DILIGENCE exacta diligentia or diligentia (see Culpa Levissima), 4. correlates to culpa levissima, ibid. 220 INDEX. EXACT DILIGENCE— coMimMed. required from recipient of commodatum, 7. required from mandatary and from negotiorum gestor, 11, 12. cases requiring, considered, 25-94. required in the repair of premises in a question with strangers being where they have right, 26-32. required under prescriptive obligation to maintain fence, 32. required from persons entrusted with the maintenance of public works, 35-42. required from public ofi&cors (sheriff, &c.), 42-46. to prevent escape of noxious or dangerous thing or animal, 46-56. to afford safety to persons invited on premises, 61-65. required from common carriers, 65-80. required from innkeepers, 81. carriers of persons by fast conveyance for hire, 83-93. proprietors of race-stand, 93. EXCEPTIONAL rainfall causing overflow of lake, excused as vis major [Nicholls V. Marsland], 49. EXECUTION, liability of sheriff in, 43. EXECUTIVE COMMITTEE, delegation of functions to, by deed of settlement excuses innocent directors, 112. EXHIBITION, stand for viewing {Francis v. GockerelV], 93. EXPLOSION of nitro-glycerine by accident, 187. EXPEESS CONTEACT, insurance must be, 22. may be in such terms as to exclude all question of negligence, 95. EXUBEEANT TEU8T, person to whom confided must at least bestow the dili- gence which he is accustomed to use in his own concerns, 10. FACTOEIES AND W0EKSH0P8, Act relating to, 41 Vict. c. 16 .. 157. FALSE INFOEMATION given to intending purchaser renders person giving it liable, 113. INDEX. 221 FAEE, payment of, not indispensable to establish a contract to carry a passenger, 90. FELLOW-WOEKMAN, or fellow-servant, negligence of, presumed to be within risk incident to contract of service, 148. FENCE, obligation between occupiers to, 32. duty of railway company to maintain, 42. insufficient at . place of unloading cattle from railway, company liable for [Booth v. N. E. My. Co.\ 75. dangerous machinery, duty of care to, 154, 156. statutory duty to, in some works, ibid. FEEOCIOUS DOG, owner liable for, if character known to him, 53. what affords presumption of knowledge, 54. FESTINIOG EAILWAY CASE, (damage from sparks), 50, 55. FICTION by which dolus is inferred from culpa lata, 9. presumed CMlpa is a, as well as implied contract of war- ranty, 22. FINE, neglect of solicitor advising, to inform client of effect in revoking a devise, 107. FIEE from passing engine igniting grass cuttings left beside a railway in an exceptionally dry season and spreading to some distance, evidence of negligence against the company {Smith v. L. & S. W. By. Co.\ 169. FLAW in welding of tire wheel, accident caused by [Bedhead V. Midland By. Co., 84]. FLOODING of mine by bursting of reservoir [Fletcher v. Bylands], 47. of land caused by negligent construction of drainage works [Collins v. Middle Level Commissioners], 170. FOG, duties of owners of vessels in, in navigable river, 133. ship in tow getting aground in, has no claim against tug which might have been ordered to stop, 184. FOOT-PA S8ENGEES knocked down at level crossing on a railway [Stapley v. L. B. & S. C. By. Co.], 57. 222 INDEX. rOOT-PAS8BNGER8— coraimMeA [Stuhley V. L. & N. W. By. Co.], 59, 183. [Sheltm V. L. & N. W. By. Co.], ibid. FOOTPATH crossing a railway at a level running alongside of carriage way [Bilhee v. L. & B. By.], 60. FOEEIGN CODETS, function of a notary with regard to evidence in (see Notakt), 4-4. FOEEMAN, employment of competent person as, a sufficient per- formance of master's duty in selection of servants, 154. notice to, of negligence of boy employed in works no ground of liability against master, 155. FOEGEEY, presumption generally is that, ought to be detected by a person who acts on the faith of a written document, 112, 132. exception where facilitated by negligent act, 113, 132. but not by neglect of some collateral precaution, 132. FRAUD, only such negligence (crassa negligentia) as the law construes to be fraud would support a bill in Chancery, 108. negligence in parting with control of a thing, whereby another is enabled to commit a fraud, consequences at law and in equity of [^Matthews v. Disamnt Corp.], &c., 128. question who suffers by, depends on who has refused the confidence, or been guilty of negligence, 131. FEAUDS, STATUTE OF, operates like the litterce of the Eomans, 13. FEENCH BILLS OF EXCHANGE, duty of attorney suing upon, to ascertain whether they have been indorsed in accordance with French law [Long V. Orsi], 101. FEENCH CIVIL CODE adopts the method of dividing the loss in cases of con- tributory negligence, 180. FEOLIC OF HIS OWN, master not liable for servant going upon, 144. FEUGI ET DILIGBNTES, homines, criterion of diligence required in matters of ordinary common sense, 6. INDEX. 223 FUTUEE PROSPECTS may be taken into consideration in estimating measure, of damages [Fair v. L. & N. W. By. Co. Q. B., 18 W. E. 66]. GAME, damage to, by dogs trespassing, 53, n. GANGWAY, damage arising from defective [Smith v. London, &c., Dock Co.], 64. GAS COMPANY, negKgenoe of, in laying down defective pipe [Burrows V. March Gas Co.\, 171. GAS-PIPE, negligently drilling hole in, 118. GATE-KEEPEE at level crossing, intimation by, that the line was safe [Lunt V. L. & N. W. By. Co.], 57. discontinuance of keeping, as a self-imposed precaution, no evidence of actionable negligence, 59. GATES required by statute to be provided at level crossings over public carriage road, under charge of persoQS to open and shut them, 57. required where bridle-way crossed, 58. or stiles required where footway crossed, ibid. case when carriage and footway together crossed a line at level [Billbee v. L. & B. By. Co.], 60. GENEEAL OEDEES, act of servant contrary to, no answer to an indictment for nuisance against the master, 27. GENEEAL SHIP, master or owner of, is prima facie a common carrier, 77. but his liability may be qualified by the term of the bill of lading, ihid. GLANDEEED HOESE, liability incurred by giving, to be put into stable [Penton v. Murdoch], 168. GOODS. See Common Caekiee. perishable, duty of carrier relating to, 67. carried by sea, discharge of, regulated by statute, 66. sent on account and at risk of consignee, consignee is the person to sue for loss of, 71. sent on approval, &c., consignor must sue, ihid. 224 INDEX. GRASS CUTTINGS beside railway set fire to by passing engine in excep- tionally dry season, and spreading fire to a considerable distance, evidence of negligence, 169. GEATUITOUS undertaking involves a legal duty [Goggs v. Bernard\ 14. service of person professing skill involves a duty, 16. may perhaps be taken account of by a jury in acquitting, 17. term applied to case vehere a person gives a seat in his carriage to another going on common errand, 121. loan (see Commodatum). loan of scaffolding, lender does not warrant that it has been carefully constructed, although lent for a purpose in which he is interested, 123. deposit (see Deposit). bailee not responsible without proof of negligence, 163. bailee may be responsible for gross negligence or great want of skill, 167. GE0S8 NEGLIGENCE, use of this term rectified, 15, 102, 121, 122. said to be only ordinary negligence with a vituperative epithet, 16. sometimes means only considerable negligence, 17. equated by law to wilful wrong, the lowest ground of indemnity, 24. use of term as applied to negligence of solicitors ex- plained, 102. construed as fraud by Court of Equity, 108. term loosely applied in case of giving a seat in a carriage to a person going on common errand \Moffatt v. Bate- man], 121, 122. of kind which law equates to intention not answered by contributory negligence, 186. evidence of, in case of deposit of valuables with a bank for safe keeping, held insufficient [Giblin v. McMulleri], 163. gratuitous lender as well as depositary may be liable for, 167. GEOUNDING of ship on bank at entrance of dock \_Mei-sey Docks, &c., V. Gihhs], 35. GUEST. See Host and Gtjbst. GUILT, negligence, &c., grounds of imputing, 3. INDEX. 225 GUN for use of plaintiff and Ms sons [Langridge v. Levy}, 178. HAIE-WASH for use of plaintiff's wife \^George v. Skivington\, 178. HAEBOUEING things in their nature dangerous, liability for [Fletcher v. Bylands], 46. strange ferocious dog, person not guilty of, who reason- ably tries to drive the dog away, 54. HATCHWAY, damage from falling through unguarded, on transit to a passenger ship [John v. Bacon], 89. HAYSTACK burnt by sparks from a locomotive used without statu- tory authority [Jones v. Festiniog My. Co.], 50. HEEDLESSNESS distinguished from negligence in the popular sense of the word, 2. HIGHWAY. See Suetetob of Highway. when, crossed by railway under sanction of an Act of Parliament, there is an implied duty on the railway company to keep the line in a proper state for passage of carriages across, 58. contractor having opened, under statutory powers, and afterwards properly reinstated, not liable for natural subsidence of soil [Hyams v. Webster], 134. persons interfering with, bound to take precautions, 145. leaving van with ploughing gear all night, an unreason- able user of, 174. HIEE, liability incurred by contract of, not greater than that involved in mandate, 16. contract to carry for (see Common Cakeiee). contemplates benefit of both parties, 65. carrier of passengers for, distinguished from person giving seat in his carriage to another, 121. in contract of employment for, hirer not responsible for risks incident to the contract of service, 147. one who gives another dangerous goods to carry for, is bound to give notice of their dangerous character [Farrant v. Barnes], 167. HOLE in floor of theatre, damage to supernumerary falling through, 61, n. 226 INDEX. HOLT, C.J., his judgment in Coggs v. Bernard, 14. follows Eoman law in treating mandate as involving a duty, 15. HOESE, protected under the Act protecting sheep and cattle from worry by dogs, 54. under contract of agistment put to graze with heifers, and found gored by bull, evidence of want of reasonable care, 55. and cart, damage by, negligently left in street by work- man entrusted with them, having gone a mile out of the proper line of his work [ Whatman v. Pearson'], 140. frightened by jet of water upon public road [Hill v. New Biver Ool 170. glandered [Penton v. Murdoch], 168. and cart left unattended in public place, evidence of gross negligence from which law may presume in- tentional mischief, 186. HOST and guest, relation between, implies liability for ordinary negligence only, 64. HUSBANDEY, good, for purposes of, railway accommodation works must be sufficient, 42. IDENTIFIED, with person guilty of contributory negligence, 185. child, with person in whose care it is, ibid. railway inspector, with his company, ibid. doctrine repudiated by Scotch Courts, 186. IGNOEANCE of obstruction does not excuse corporation having duty to maintain a dock [Mersey Boehs, &c., v. Oibbs], 35. IMPLIED, warranty as a ground of liability not distinguishable from culpa levissima, 23. INADVEETENOE includes negligence, &c., 2. INCIDENT to the contract or service ; Eisk (see Eisk incident to the Conteaot) excludes the responsibility implied by in- vitation, 61. forms an exception to the maxim respondeat superior, 147-158. nsTDBX. 227 INCONVENIENCE suffered by individual of the same kind as that suffered by the public does not ground remedy by action, 31. where person to escape inconvenience caused by another has run into danger, there is no cause of action [Adams V. L. & Y. By. Co., 17 W. B. 885]. INCUESUS HOSTIUM, recipient of commodatum liable for, si peregre secum ferat, 7. INDEMNITY, obligation of, may be grounded on culpa (actual or pre- sumed) or on contract (express or implied) of warranty, 22. analysis of this obligation, 23. INDEPENDENT CONTEACTOE. See Contraotoe. INDEPENDENT JOUENEY, master not responsible for servant going upon, not in course of employment, 142. INDIANS, case of negligence arising out of employment of, to burn brushwood [Serandat v. Suisse], 161. INDICTMENT, for keeping premises in a dangerous state, 27. against public company for neglecting statutory duty, 38. action not always competent where indictment will lie, 31. INHABITANTS OF PAEISH, indictment for not repairing road, lies against, unless the roads have become vested in a local board under the Public Health Acts, 31. INJUEY constituted by damaging act or omission preceded by negligence or intention, 3. small negligence sufi&ces, where the law requires great diligence, iMd. may arise out of contract, 18. may be a breach of duty which is neither imposed by contract nor arises out of delict, ibid. in order to infer, where there is neither privity of con- tract nor proximity of time and place, intention or its equivalent, culpa lata, must be there, 178. INNKEEPEES, their liability for the goods of a guest at common law, 81. their liability now restricted by statute, 82. Q 2 228 INDEX. INSUEANCE is a contract of indemnity against cams (or act of God) and must be express, 22. in a voyage policy for the ship implies warranty of seaworthiness, 77. INSUEEE, carrier of passengers is not, 83, 85. INTENTION distinguished from negligence, &c., 3. (dolus) or culpa lata (see Culpa lata) the lowest ground of liability to indemnify, 24. contributory negligence no answer to action grounded on, 186. (dolus') and its equivalent culpa lata considered as grounds of injury, 162, 169. INTEEEOGATOEIES before declaration, refused in action against railway company arising out of a collision [Bechervaise v. O. W. By. Co., L. E. 6 C. P. 86, Nov. 24, 1870]. INTIMATION that the line was safe, at level crossing fStapley v. L. B. & S. a By. Co. ; Lunt v. L. & N. W. By. Co.\ 57, 181. INVESTIGATION of title, liability of solicitor for failure in, 98. INVITATION to come upon premises, duty implied by, 61. distinguished from licence, 62. rationale of the distinction, 63. by railway company to cross a railway, being unpro- vided with footbridge at station, 64. in legal sense does not include the relation between host and guest, 64. to alight at railway platform, what is, 125-128. INVOLUNTAEY BAILEE, carrier of goods after refusal at address of consignee, is, and as such only liable for ordinary negligence, 69. may incur liability by parting with control without occasion [Siort v. Botts\ 128, 129. lEONSTONE EEFUSE, nuisance by accumulation of, 48. JONES, SIE W., his essay on the law of bailment, 15. follows the Eoman law in treating mandate as involving a duty, ibid. INDEX. 22!) JUDGE, irresponsible on grounds of public policy, 46. JUDICATUEE ACT, 1873, retains distinction between damage by collision between ships and other cases of damage, 180. JUEISDICTION to entertaia question of solicitor's negligence, taxing master has not, 109. of Court of Chancery in cases arising out of negligence (see Chanoeet), 108, 109. JUEY, ordiaary negligence generally a question for, 97, 118. invitation to alight from railway train a question for, 125. question properly left to, whether a man having charge of horse and cart having gone home to dinner a mile out of the line of his work was acting in the course of his employment, 140, 141. case should be left to, if room for doubt of facts from which contributory negligence is inferred, 181. KEEPEES OF EECOEDS of heritable title in Scotland guarantee accuracy, 45. KICKING STEAP, neglect of precaution to use, 125. KINGBOLT broken, ia case of driving a guest, not positive evidence of negligence, 122. at least presumption rebutted by proof that carriage had been periodically examined, ibid. KNOWLEDGE. See Scienter. of existence of submarine cable not necessary in order to infer negligence from damage to it by reoilessly hauling up anchor, 118. by servants whose duty is to inform the master may be imputed to the master, although a corporation, 54. of dangerous defect in thing lent infers culpa lata in the lender, and renders him responsible, 167. LAKE, overflow of, caused by exceptional rainfall [Nichols v. Marsland], 49. LAND. See Occupiek. liability of person harbouring dangerous thing upon [Fletcher v Bylands\, 46, 47. right to support, 33. 230 INDEX. LANDLOED AND TENANT, when respectively liable for dangerous tenement, 26, 27. LATA CULPA. See Culpa Lata. LATENT DEFECT, break-down of mail-coach from, damnum absque injuria to driver [Winterbottom v. Wright], 179. in wheel of their carriage, railway company as carriers of passengers not liable for \Medhead v. Midland By. Co.], 84, 86. LAW AGENT. See Solicitor. LAW AGENTS in Scotland, the relations between Edinburgh agents and their professional employers altered by the Law Agents Act, 1873.. 104. LAW OF BAILMENT, Sir W. Jones' treatise on, 15. LEGAL ESTATE, mortgagee acquiring, entitled to rely on erroneous repre- sentation that settlement does not affect title, 130. person relying on, not fixed with constructive notice of documents forming links in title to \Pilcher v. Bawlins, L. E. 7 Ch. 2-59], 130, 131. LENDEE liable for concealing a dangerous defect of which he knows, 167. LENDING a hand to work involves undertaking the risks of the employment, 162. unless person doing so has an interest in the work, as owner of cattle assisting in discharging them, ihid. LEVEL CE08SINGS on railways, 56-61. statutory enactment where the crossing is over a public carriage-road, 57. question with a foot passenger [Stapley v. L. B. & S. C. By. Co.], ibid., 58. intimation of line being safe [Lunt v. L. & N. W By. Co.], 57, 181. no duty as to foot-way or private carriage-way, 58. failure to observe self-imposed precaution not negli- gence \_Shelton V. L. & N. W. By. Co.], 59. nor is omission to exercise a statutory power [Cliff V. Midland By. Co.], 59. INDEX. 231 LEVEL CE0SSING8— coM